Williams (as litigation guardian of Hirama) v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 5 2 /2010 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN TE AROHA WILLIAMS as Litigation Guardian of MILEKA HIRAMA (Al 448/06) Appellant AND THE ACCIDENT COMPENSATION CORPORATION Respondent AND JOHN GATES Third Party DECISION OF JUDGE M J BEATTIE [1] A Notice of Appeal was lodged on behalf of the appellant on 21 November 2006, that Notice of Appeal being in relation to a review decision given on 9 November 2006. 2] The issue in that review was whether the Reviewer had jurisdiction to consider the appellant's claim for cover for personal injury from medical misadventure being medical error. 3] In her decision the Reviewer, Ms Kaye Stringleman, found that the issue of medical error had already been determined, firstly by the respondent's primary decision of 26 November 1996 granting cover for medical error, and then that decision being quashed by review decision dated 31 July 1997. In the review decision quashing the granting of cover for medical error, the Reviewer identified that the issue of whether cover for medical mishap could be had, had not yet been determined, and that this was to be referred back to the Corporation for consideration. 2 [4] The Corporation made a decision on 29 August 1997 stating that the appellant did not qualify for cover for personal injury caused by medical mishap. [5].. . The appellant subsequently obtained. leave for an extension of time for the filing of an application for review of that decision, and at a review hearing in October 2006 the preliminary issue of jurisdiction was raised as it was submitted by counsel for the appellant that the primary decision sought to be reviewed did include consideration of whether the appellant was entitled to cover for personal injury caused by medical error. [6] In her decision, now the subject of this appeal, the Reviewer determined that the issue of personal injury caused by medical error had been determined in another review decision given on 31 July 1997, and that the only issue that was alive and which could be heard was the issue of whether medical mishap had arisen. [7] At the hearing of that review, counsel for the appellant, Mr Hayes, advised that the appellant was not seeking to pursue the matter of medical mishap and that her review was to be confined to the issue of medical error. [8] The Reviewer determined that she had no jurisdiction to consider the question of medical error, it having already been considered in another review decision, and it is that decision on the issue of jurisdiction which is the subject of this appeal. [9] Quite separately and independently, counsel for the appellant sought and obtained leave to appeal the review decision of 31 July 1997, which had overturned the respondent's primary decision to grant cover to the appellant for personal injury as a consequence of medical error. [10] That decision has now been the subject of a full hearing in the District Court and in respect of which a decision has been given, that decision being given on 19 March 2009, being decision 40/09. [11] The substance of that decision was that the Court determined that the appellant did not qualify for cover for personal injury caused by medical misadventure being medical error. That decision and the issue therein is still "alive" in that counsel for the appellant has made application under Section 162 of the Act for leave to appeal that decision to the High Court. [12] The consequence of the foregoing is that the only issue which could be said to be "alive" in the present appeal is that of whether the appellant could qualify for cover for 3 medical misadventure being medical mishap, and it has already been noted that counsel for the appellant had not sought to advance that contention at review, he only seeking to have the decision sought to be reviewed widened sufficiently to have the issue of medical error reconsidered. [13] As the issue of medical error has in fact now been considered by the District Court and a decision made, it is clear that any outcome that may have been sought from the respondent's primary decision declining cover for medical mishap, or the review decision of 9 November 2006 confirming that the only issue that could be considered from that primary decision was the issue of medical mishap, must be confined to the issue of medical mishap. in those circumstances I find it to be the case that no purpose can be served by this appeal continuing. [14] In that regard the Court made a Direction on 12 November 2009 requiring counsel for the appellant to show good cause why appeal Al 448/06 should remain extant, failing which it would be struck out. Counsel was required to file any memorandum in respect thereof on or before 11 December 2009 [15] Despite counsel for the appellant being reminded of that timetable, nothing has been forthcoming and it therefore must be presumed that counsel for the appellant accepts that no purpose can be served by this appeal remaining extant. [16] Accordingly, I find that it is appropriate that this appeal be dismissed, the specific ground for which can be stated as being dismissal for want of prosecution pursuant to Section 161(3)(b) of the Act, but the reality is that no useful purpose can be served by it remaining and certainly its dismissal does not adversely affect the appellant and her existing rights regarding the issue of medical error. the DATED this 29 day of MARCH 2010 M J Beattie District Court Judge