Renton v Accident Compensation Corporation

IN THE DISTRICT COURT Decision No. [2010] NZACC 204 HELD AT DUNEDIN IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an application for leave to extend time for filing Notice of Appeal pursuant to Section 151(3)(c) of the Act. BETWEEN NIGEL RENTON (Al 373/06) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at DUNEDIN on 18 August 2009. APPEARANCES: Mr P Sara, Counsel for Applicant. Mr I Hunt, Counsel for Respondent. Mr A Lewis, Counsel for Professor Bishara DECISION AND DIRECTIONS OF JUDGE M J BEATTIE [1] This matter came on for hearing before me to consider threshold matters, and which matters were broadly brought under the umbrella of the applicant's application for leave to extend the time to appeal. [2] Prior to the hearing, counsel for the parties had conferred and there was broad agreement between them as to the way this matter should move forward, and in particular how certain potential barriers could be overcome. [3] It should be recorded at this point that the applicant seeks as the ultimate outcome that he be granted cover for the personal injury of florid papilloedema and 2 subsequent optic atrophy, which personal injury he contends he suffered as a consequence of a failure to diagnose benign intra cranial hypertension, which failure is contended to be medical error, that error being committed by the intended second respondent, Professor Bishara, Neurosurgeon. [4] The alleged medical error is said to have taken place at Dunedin Hospital's Accident and Emergency Department on one or more dates in March 1997. [5] On 22 April 1997 the appellant lodged a claim for cover where the allegation of misadventure was not made against Professor Bishara but against "Duty doctors at A & E on three occasions". [6] The claim was referred to the respondent's Medical Misadventure Unit and reports were sought from various medical professionals from the A & E Unit, including Professor Bishara. [7] In the course of its investigations, the Medical Misadventure Unit considered the actions of members of the A & E Department, and in particular the actions of Drs Forrester and Every, who were on duty at particular times. [8] Consequent upon the Medical Misadventure Unit's investigations and report, the Corporation issued a decision on 29 May 1998 declining the applicant's claim for cover and determining that no medical error had been committed by any health professional at Dunedin A & E in respect of treatment of the applicant. [9] The applicant sought a review of that decision and this application prompted further investigation by the Corporation's MMU and whilst that investigation was taking place the review application was put on hold. [10] At this time the applicant was represented by counsel and it ultimately was the case that the investigation did not disclose any evidence of medical error on the part of doctors Forrester or Every, and for this reason the applicant's counsel conceded at the review hearing that the Review could not succeed. [11] In a Review decision dated 4 September 2003, the Reviewer confirmed the Corporation's primary decision that there had been no medical error and the Corporation had therefore been correct to decline cover. 3 [12] In 2006 the applicant consulted Mr Sara and further medical opinion was sought as to the likely nature of the appellant's medical condition as he presented on 4 March 1997, and when seen by Professor Bishara. [13] At this point the Court needs to go no further into matters pertaining to the actions or omissions of Professor Bishara. Suffice it to say that there is now on the table an allegation that Professor Bishara either failed to carry out proper investigative procedure, or having done so he failed to discern the correct nature of the applicant's condition. [14] On 21 September 2006, the applicant, through Mr Sara, lodged a Notice of Appeal to the District Court from that Review decision of 4 September 2003, contending that the weight of medical evidence was that the appellant's injury was caused by medical misadventure. The Notice of Appeal recognised that leave to extend the time for filing would need to be obtained. [15] It is the case now that the applicant has obtained specialist medical opinion in relation to the acts or omissions of Professor Bishara, and it was the applicant's intention to have this Court consider the question of medical error on the part of Professor Bishara. [16] That course has been opposed by Mr Lewis, representing Professor Bishara, and it is on that basis that he seeks to oppose the granting of leave to extend time for filing the notice of appeal. [17] As a matter of jurisdiction the Court identifies that hitherto no decision has been made by either the respondent in the first instance, or the Reviewer at Review, on the actions of Professor Bishara. Whilst his name has been mentioned it has only been so in the general matrix of fact, and at no stage has any act or omission by him been the focus of any inquiry as to any medical error on his part. [18] In those circumstances I find that if this appeal were allowed to proceed on the substantive issue sought by the applicant, this Court would be required to come to a decision which had not hitherto been the subject of any decision by the Corporation or Reviewer, and as such it would be a decision which would be made without jurisdiction. [19] Mr Hunt, Counsel for the Corporation, whilst raising those matters of jurisdiction, does not, as a matter of justice, seek to oppose the granting of leave to appeal out of time. [20] Mr Sara accepts the jurisdictional barriers which would be in his way if he were to seek to have the substantive question heard by way of appeal from the current review decision. [21] It is with that as a background that the parties have reached an accommodation, which the Court wholly endorses, and which will enable the substantive issue to be aired. [22] Accordingly then, it is the joint view of counsel for the parties that time to appeal be extended but the right of appeal confined to this Court, contemporaneously therewith making an order pursuant to Section 161(2)(ili) quashing the Review decision and directing that another review be conducted at which the issue of medical error on the part of Professor Bishara be considered, both as to the fact thereof and to issues of causation in relation to the personal injuries sought to be covered. [23] Accordingly, on the basis of the above, this Court hereby orders as follows: (i) The time for filing the Notice of the Appeal against the Review decision of 4 September 2003 is hereby extended to the date when that Notice of Appeal was received by the Registry on 26 September 2006. (ii) That pursuant to Section 161(2)(c) of the Act, the Review decision of 4 September 2003 is hereby quashed, and this Court directs that another review be conducted, which review shall consider the substantive issue of whether the applicant is entitled to cover for personal injury by medical misadventure, being medical error, such medical error allegedly having been committed by Professor Bishara at Dunedin Hospital on or about 4 March 1997. [24] For the avoidance of doubt, the granting of leave to extend the time in (i) above, does not extend to the right of the applicant to have the substantive issue of 5 medical error by Professor Bishara determined by the District Court within the parameters of the current appeal. DATED this 15 day of November 2010 M J Beattie District Court Judge