Atapattu-Weerasinghe v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2016] NZACC 73 ACR 242/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW PURSUANT TO SECTION 162 OF THE ACT BETWEEN SHANE ATAPATTU-WEERASINGHE Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent On the paper's at Auckland Decision: 24 March 2016 DECISION OF JUDGE G M HARRISON John Miller Law for the Applicant Young Hunter for the Respondent The application [1] The appellant, Mr Atapattu-Weerasinghe, applies for leave to appeal to the High Court on questions of law against the decision of Judge MacLean of 31 August 2015 in which he allowed an appeal by the Corporation against an earlier finding by a Reviewer in favour of Mr Atapattu-Weerasinghe. [2] The application seeks leave to appeal on five questions of law as follows: (i) Does the High Court's judgment in Accident Compensation Corporation v Bartels [2006] NZHC 939 apply when a decision deemed under s 58 is revoked under s 65? (ii) Did the District Court err in omitting to deliver a ruling on the validity of the 20(2)(g) claim? (ifi) Did the District Court err in its analysis of causation on the 20(2)(h) claim? (iv) Are the principles in Daubert v Merrell Dow Pharmaceutical Inc 509 US 579 (1993) (Daubert) as adopted in Lundy v R (1 NZLR 340) sic compatible with Ambros and can they form part of a valid appraisal of causation under the Act? (v) Did the District Court take into account irrelevant considerations? History [3] In May and September 2009 Mr Atapattu-Weerasinghe suffered injuries firstly to his left wrist and secondly to his shoulder, cover for both injuries being conferred. [4] He continued to experience symptoms and one of the prescribed medications he took was Diclofenac, a non-steroidal anti-inflammatory drug (NSAID). [5] On 24 September 2009 Mr Atapattu-Weerasinghe was admitted to Waikato Hospital. A diagnosis of Methicillin-resistant staphylococcus aureus (MRSA) septicaemia and multi-organ failure was made. A diagnosis of necrotising fasciitis was also made. [6] It was common ground that the necrotising fasciitis, which is a rare disease, was caused by MRSA bacteraemia, or bacteria in the bloodstream. That is, if there were no MRSA bacteria in his bloodstream he could not have developed necrotising fasciitis. It was not possible to determine when Mr Atapattu-Weerasinghe contracted the MRSA bacteria. [7] Claims for cover were subsequently made for an infection of the left shoulder following injury at work and an infection as a result of taking the anti-inflammatory medication. There was a further claim for cover made for an infection of the shoulder as a consequence of a steroid injection given for the left wrist injury, but there was no evidence to establish a causal connection between the injection and the infection. 8] On 17 November 2010 deemed decisions granting cover were issued in respect of the three separate claims for cover. On 10 June 2011 the respondent issued a decision revoking the decisions of 17 November 2010 and declining cover for all three claims. [9] On 3 April 2012 the Reviewer quashed that decision and substituted his decision that cover was provided for the infective process. The Corporation appealed that decision to the District Court. [10] The issue on the appeal was whether there was a causal connection between the treatment with Diclofenac and NSAID, and the development of necrotising fasciitis. A decision on that issue required an analysis of contrasting expert opinions. Both experts were infectious disease specialists. Dr Mills, who had treated Mr Atapattu-Weerasinghe, was of the opinion that there was a causal link, while Dr Everts' opinion was that there was not. [11] Judge MacLean undertook a careful analysis of the evidence of the expert witnesses which it is unnecessary to repeat, the parties already having his reserved decision. [12] His conclusion appears at [58] where he said: On weighing up the totality of the evidence available to me and the conflicting views of the specialists my conclusion is that the scientific evidence, while raising a risk of a causal link, does not go far enough to enable me to draw a robust inference. The reality is that the specialists' scientific evidence is inconclusive. On the evidence, there are a number of reasonable alternative possibilities including the trip to Sri Lanka with its known higher risk of contracting MRSA that make it impossible to draw the necessary robust inference submitted on behalf of (Mr Atapattu-Weerasinghe). Grounds for appeal - question of law [13] In the first place the point of law must be capable of bona fide and serious argument - Impact Manufacturing Limited v Accident Rehabilitation and Compensation Insurance Corporation (Doogue J, High Court Wellington, AP 266/00, 6 July 2001). [14] Furthermore, issues of fact should not be dressed up as questions of law. Northland Co-operative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363. The questions of law [15] The first question of law asks whether the decision in the Bartels case applies when a decision deemed by s 58 to have been made because the Corporation has not acted within a stated time limit is later revoked under s 65. [16] In my view the answer to that question is quite simple. At [28] of its decision the Full Court said: It is after all, in the words of's 390, for the Corporation to establish "that the decision was made in error". We are satisfied, however, that it is entitled to do so using material not available to it at the time of the original decision but which has become available since. We stress however, that material must clearly establish that the original decision was made "in error" before it can invoke s 390. Our decision is based on the history of the provision, the plain words of the statute and the purpose of the provision. [17] In this case the Corporation did not make a decision when cover was granted n the sense that it considered all evidence before it and then made a decision taking that material into account. Here the decision was deemed to be made, meaning that the Bartels case cannot apply, because it applies only to situations where the Corporation has previously made a decision and later comes into material which demonstrates that the original decision was wrongly made. [18] That has not occurred in this case. The only material considered by the Corporation was when it made its decision to revoke cover, having by then obtained the necessary medical reports and information on which to base its decision. [19] In these circumstances no question of law arises which is capable of bona fide or serious argument. [20] The second question posed is whether the Judge failed to deliver a ruling on the validity of the s 20(2)(g) claim. [21] Section 20(2)(g) provides that a person has cover for a personal injury if the personal injury is described in any of the paragraphs in subs (2) (g) provides: "personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover. [22] That means that the necrotizing fasciitis, which was caused by the MRSA, must in turn have been consequential on a personal injury suffered by Mr Atapattu-Weerasinghe for which he has cover. Those personal injuries were the rotator cuff sprain and the left wrist injury. That is to say, for the applicant to be entitled to cover under s 20(2)(g), the covered injuries must cause the necrotising fasciitis to develop without any treatment intervention. The evidence was to the effect that the covered injuries did not cause the necrotising fasciitis because this was caused by having MRSA in the bloodstream. [23] At [58] of his decision the Judge said, in part: On the evidence, there are a number of reasonable alternative possibilities including the trip to Sri Lanka with its known higher risk of contracting MRSA that make it impossible to draw the necessary robust inference submitted on behalf of the (applicant). [24] That finding effectively means that the condition was not proved to be consequential on the personal injuries referred to and, as a consequence, any claim under s 20(2)(g) could not succeed and by necessary implication that claim was dealt with as being unprovable. [25] No question of law accordingly arises on this posed question. [26] The third posed question of law is whether the Court erred in its analysis of causation on the s 20(2)(h) claim. [27] Section 20(2)(h) provides that a person has cover for a personal injury if: The "personal injury is caused by a gradual process, disease, or infection consequential on treatment given to the person for personal injury for which the person has cover". [28] The issue then is whether Mr Atapattu-Weerasinghe suffered a personal injury caused by treatment given to him for a personal injury for which he had cover. [29] The argument is, therefore, that the Judge should have accepted a possible link between NSAID treatment and a staphylococcus aureus infection, and that he did not consider circumstantial factors suggesting causation. [30] The Judge considered the decision in Accident Compensation v Ambros [2008] 1 NZLR 340. The headnote to that case states as follows: A claimant for accident compensation cover on the basis of medical misadventure had to prove on the balance of probabilities that medical error or medical mishap caused personal injury (not merely that it caused a risk of such injury). [31] Again it is a question of fact whether the evidence established on the balance of probabilities that medical treatment caused the personal injury. The Judge decided that "the reality is the specialist scientific evidence is inconclusive". Paragraph [58]. That is a question of fact and no issue of law for reference to the High Court has been identified on this posed question. [32] The next question is whether the principles in the Daubert case are compatible with the Ambros case and whether they can form part of a valid appraisal of causation under the Act. The Judge was, of course, bound by the Court of Appeal decision in Ambros and, in my view, he complied fully with the standard of proof required as stated above. [33] At [47] the Judge said: I agree with the submission of the first respondent that while the principles set out in Daubert via the Lundy decision are useful guidance in a criminal law context noting that that was a case of techniques not treatment, that needs to be considered in accordance with the well established causation principles outlined in cases such as Ambros and that the critical issue, as the first respondent submits, "was the first respondent's necrotising fasciitis a consequence of the treatment given for the covered personal injury, namely the administration of Diclofenac?" [34] I accept the submission of counsel for the Corporation in para [57] of his submissions where he said: In context, Judge MacLean determined the case on a conventional application of the Ambros approach to evidence of causation, but also referred to the Daubert principles, not as inflexible rules, but as a guideline as to whether the scientific evidence as to causation reached the necessary threshold to establish causative link [35] In the end it comes down to causation proved on the balance of probabilities. That did not occur in this case even to the point of allowing the Court to draw a robust inference on causation. [36] It has not been demonstrated that the Judge erred in his consideration of the Daubert decision, which did not compromise his obligation to apply the test stated in Ambros. There is no question of law evident on this issue. [37] The last question of law is whether the Judge took into account irrelevant considerations. [38] On this issue Mr Atapattu-Weerasinghe submits that the origin of the bacterium was irrelevant to the causal thesis argued by the parties. The parties were in agreement that the medication given to him caused a proliferation of bacteria which manifests as a severe necrotising skin infection. The parties were in agreement that this is a proven and biologically plausible situation in the case of Group A streptococcus infections, the disagreement being whether there was any proof that the medication given could also result in staphylococcus aureus infections. [39] As already noted, the Judge found that there was no evidence to a sufficient standard that that was so. [40] The reference by the Judge therefore to the possibility that Mr Atapattu-Weerasinghe may have been infected with the MRSA bacteria in Sri Lanka is irrelevant to the fundamental finding that a causal link between the NSAID treatment and the necrotising fasciitis was not established. [41] It is clear in those circumstances that the Judge did not take into account an irrelevant consideration in arriving at his conclusion. His reference to the possibility that the applicant may have been infected with the bacteria in Sri Lanka is simply not relevant to the fundamental question, and consequently no issue of law warranting reference to the High Court arises. Conclusion [42] For all of the foregoing reasons no question of law has been identified which would require reference to the High Court, and the application for leave to appeal to that Court is dismissed. [43] There is no order as to costs. G M Harrison District Court Judge