Roborgh v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 147 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an application for leave to appeal to the High Court pursuant to Section 162 of the Act BETWEEN PATRIK ROBORGH (Al 186/01) Applicant AND ACCIDENT COMPENSATION CORPORATIC Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has applied for leave to appeal to the High Court from a decision of His Honour Judge D A Ongley, delivered on 14 August 2007, under Decision No. 186/07. [2] The issue in the appeal was the respondent's decision to decline to grant cover to the appellant for personal injury arising from medical misadventure. The personal injury sought to be covered was that of retinopathy of prematurity (ROP) and both claims of medical error and medical mishap had been asserted on the appellant's behalf. [3] The Court has received submissions from Mr John Miller, Counsel for the Applicant, in support of the granting of leave, and from Mr B C Corkill QC, of Counsel for the Respondent in opposition thereto. [4] The relevant facts in this appeal were not in dispute, were in a narrow compass, and were as follows: 186.01 (pg) 2 Patrik Roborgh was born on 12 September 1998 at 28 weeks, thus significantly premature. Because of his prematurity and a potential risk of ROP, he was examined by a Neonatal Unit Opthalmologist, Dr Heather Mackintosh, on 20 October 1998 at Taranaki Base Hospital. ROP is a condition of a detachment or dragging of the retina causing blindness or visual impairment. Examination for ROP is routinely carried out on premature babies of 31 weeks gestation or less. . Dr Mackintosh's evidence of her examination and assessment was as follows: "At this examination eyes showed no evidence of retinopathy of prematurity and / considered the vascularisation process of the retina was well out into the periphery. The blood vessels appeared normal in the central area of the retina. In view of these findings, and taking into account Patrik's birth weight (1365g) and relatively small requirement for oxygen, I concluded that Patrik was at very low risk of developing ROP. I therefore followed my usual practice of arranging to follow low risk babies in three to four months time to assess visual development. A request for an outpatient appointment was sent to the Outpatient Booking Office.' No follow-up appointment was arranged by Taranaki Base Hospital Outpatient Department. . In April 1999, Patrik was seen by Dr Neville-Lamb, another Consulting Opthalmologist at Taranaki Base Hospital, on Mr and Mrs Roborgh's initiative, because of demonstrable eye abnormalities. . On examination, Patrik was found to have advanced ROP in his right eye, with retinal detachment and less severe ROP was found in his left eye. (5] The applicant's claim for cover has had a relatively complex procedural history in that there was an earlier District Court appeal at which I presided and at which only medical mishap was being asserted. [6] One of the grounds found for declining cover was that there was an absence of any causal nexus between treatment and the onset of ROP. That decision went on appeal to the High Court, and in his decision Justice Ronald Young ruled that whilst the applicant must be considered to have been still in treatment, because the follow-up 3 examination did not happen and thus the treatment was incomplete, it could not be said that the treatment was properly given. For this reason, he said that the appeal must fail. [7] For the sake of completeness, Justice Young went on to consider the issue of causation and he noted that the evidence which was available was insufficient to give a clear answer on the causation question. He stated that "if it arises therefore further evidence would be required on the question of causation". (8] The applicant thereupon sought leave to appeal Justice Young's decision to the Court of Appeal and that application was considered by His Honour Justice Mackenzie. (9] In his decision to grant leave, Justice Mackenzie considered that matters pertaining to medical error ought also to be considered as being in issue, and he considered that the facts of this case gave rise to two significant questions of law. The first relating to the question as to whether, if treatment has not been properly given in terms of the definition of medical mishap, can that circumstance occur without that treatment involving medical error. The second question in terms of the definition of medical mishap, is whether it is the treatment itself which must be properly given by a registered health professional, or whether it is sufficient if the direction as to the treatment has been properly given. [10] In the course of his decision, His Honour did not actually spell out the questions of law which were to be answered by the Court of Appeal, but rather directed that they be subject to further consideration by counsel and submitted for approval to the Court [11] That situation did not occur as the parties, by agreement, agreed to have the appeal remitted back to the District Court for a re-hearing, and it was that re-hearing of the appeal which took place before His Honour Judge Ongley. [12] As far as I can discern, no further evidence was introduced on the question of causation for that appeal. His Honour's comment on the evidence in that regard is as follows: "Cover depends on proof of causation. I respectfully agree with Judge Beattie's finding in the earlier appeal, that there is evidence that the appellant's sight would probably have been salvaged had his condition been diagnosed earlier. The crucial question is when it could have been diagnosed and treated. There is little or no evidence that the condition could have been treated if it had been diagnosed by mid February when the next examination was due to be done. By that time the 4 condition may have developed to a stage at which it could not be effectively treated. There is no evidence as to when the condition would have become apparent so that it would have been diagnosed and treated. The evidence only suggests that the risk of ROP could have been reduced. The Court of Appeal in Ambros v ACC has affirmed that, to obtain accident compensation cover, the law in New Zealand requires proof that the condition would probably have been successfully treated. Contribution to risk is not enough for cover. Ambros also clarifies that loss of an opportunity is not a ground for cover in itself. It is only a basis for cover if the evidence establishes that the lost opportunity would probably have otherwise enabled successful treatment. That is not so in this case. [13] Arising out of all the foregoing, Mr Miller for the applicant, contended that there are four questions of law which are appropriate for consideration by the High Court, namely: the proper interpretation of medical mishap in section 5, and whether section 5(7) applies to both medical mishap and medical error, or just medical error; (ii) the proper interpretation of medical mishap in section 5 and whether it covers a situation where a properly given direction is not properly mplemented; (ifi) the proper interpretation of medical error in section 5 and whether the opthalmologist, Dr Mackintosh was under a non-delegable duty to ensure that a follow-up examination, which she had directed, took place. (iv ) the proper interpretation of the requirements for causation following the decision in ACC v Ambros [2007] NZCA 304, and in particular upon whom the onus lies if it is accepted that Patrik's sight could have been salvaged by earlier checking. [14] Mr Corkill QC, for the respondent, submitted that Judge Ongley had correctly identified the principles of causation as clarified in Ambros, and that His Honour found as a fact that there was no evidence of causation based on those Ambros principles He submitted that the Judge's finding was a finding of fact and which could not be said to be a perverse finding. [15] Mr Corkill QC further submitted that there would be no point in allowing an appeal to proceed on the questions of law posed relating to medical error and medical mishap, as set out above, if the issue of causation were not to be the subject of an appeal, which he has contended is purely a question of fact. [16] Mr Corkill submits that unless it be determined that there is an error of law in the way the Learned Judge treated the causation issue, then leave to appeal on the questions of law which have been posed, and which were originally posed by Justice 5 Mackenzie, ought not to be the subject of the granting of leave as no purpose would be served to this applicant. [17] This is an appeal where important questions of law have been posed and where there is also a very weak link from a factual perspective on the question of causation, particularly as that question of causation has now been explained by the Court of Appeal in Ambros (supra). [18} Whilst I agree with Mr Corkill QC's observations on the issue of causation, and whether within the context of Judge Ongley's decision, a question of law arises, there is an argument that on the particular facts of this case, as a matter of law, a causative link can be established, particularly when it is put in the context that Mr Miller put it in his submissions, when in short pithy statements he submitted The personal injury is the loss of sight. That personal injury resulted from medical mishap. . Medical mishap means an adverse consequence of treatment properly given. The treatment was designed for the sole purpose of preventing the loss of sight. It is accepted that the opthalmologist acted properly in her examination of the eyes, nevertheless the boy lost his sight - that is clearly and an adverse consequence [19] For the foregoing reasons, therefore, I find that grounds have been made out for the granting of leave to appeal to the High Court on questions of law. Whilst the Court has sought to grapple with those questions, it is the case that Mr Miller made a more in-depth formulation of those questions in his submissions in reply, which, of course, Mr Corkill has not had the opportunity of commenting on. Given that I have granted leave, I direct that counsel for the parties agree on the questions to be submitted to the High Court for consideration, and which questions can form part of the granting of leave. DATED this 4 day of July 2008 Jeate M J Beattie District Court Judge