Watts v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 35 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN REBECCA IVY WATTS of Auckland Appellant (Appeal No. DCA 121/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The respondent has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie delivered on 2 December 1998 under number 193/98. The issue before the learned Judge was whether the personal injury suffered by the appellant was as a consequence of treatment by or at the direction of a registered health professional. The appellant in this case, with her twin sister, was born on 22 March 1991 by caesarean section. On birth, both twins were transferred to the special care baby unit at National Womens Hospital in Auckland where they were nursed in incubators. The appellant was subsequently diagnosed as having contracted Enterobacter sakazakii meningitis as a result of which, in spite of antibiotics, she suffered complications which resulted in brain damage and spastic quadriplegic. While her twin sister was similarly diagnosed, she responded to antibiotics and overcame the problem. The appellant's mother lodged a claim for cover and treatment expenses on the grounds that the appellant had suffered a medical misadventure. After that application had been declined by both the respondent and the Review Officer, the appellant appealed to the District Court. 2 After making various findings of fact, His Honour Judge Beattie concluded that: "The only issue falls to be determined in this appeal is whether the personal injury sustained by the appellant was as a consequence of treatment by or at the direction of a registered health professional. In other words did the appellant's infection with meningitis occur in the course of treatment." The Court held that the issue had to be considered under the definition of "medical mishap" as provided in section 5(1) of the Act whereby it means an adverse consequence of treatment by, or at the direction of, a registered health professional, properly given if- the likelihood of the adverse consequence of the treatment occurring is rare; and (b) the adverse consequence of the treatment is severe. The basic issue which the Court had to decide was the meaning of the word "treatment" as it is not defined in the Act. The learned Judge held, after a consideration of various definitions: "That at all the stages of her short life to the point of her contracting meningitis she was in a state of treatment. Every aspect of her environment and attention was part of the necessary treatment for her survival." The learned Judge then held that the appellant was accordingly entitled to cover under the Act. The respondent has applied for leave to appeal to the High Court against that decision on the grounds that the Judge erred in his interpretation and application of section 5(1) of the Act and, in particular, in his decision, on the meaning of the words "treatment by, or at the direction of, a health professional". The respondent also submits that the Judge erred in holding that the appellant was in a state of "treatment" in all stages of her life up to the point of contracting meningitis. It is quite clear that the whole tenor of the decision rested upon the definition of what constitutes "treatment, by a registered health professional" which definition has not previously been the subject of a decision by the High Court. I consider that the issue does raise a question of law which is one which ought to be the subject of a decision by the High Court. Accordingly leave to appeal to the High Court is granted. DATED at WELLINGTON this 22 day of February 1999 A W Middleton District Court Judge dea121-98.doc (nr)