WARREN MCENTEER V ACCIDENT COMPENSATION CORPORATION CA408/2009

WARREN MCENTEER V ACCIDENT COMPENSATION CORPORATION CA408/2009 15 April 2010IN THE COURT OF APPEAL OF NEW ZEALAND CA408/2009 [2010] NZCA 126BETWEEN WARREN MCENTEER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 4 March 2010 Court: William Young P, Arnold and Baragwanath JJ Counsel: P F Gorringe for Appellant P J Radich and K M Snook for Respondent Judgment: 15 April 2010 at 10.30 amJUDGMENT OF THE COURTA The appeal is dismissed. B We answer the question posed in [11] below as follows: For the purposes of s 32(1)(c), the relevant treatment is the treatment that was needed once the nature of the claimant's condition became apparent during the course of treatment. C We confirm the order of the High Court that the matter be referred back to the District Court for determination of the question whether the prolonged clipping, and the resulting physical injury, was a necessary part or an ordinary consequence of the treatment. D There is no order as to costs.REASONS OF THE COURT(Given by Arnold J) [1] This appeal, by way of case stated, concerns the interpretation of the treatment injury provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001 (the Act), specifically s 32(1)(c) (as amended with effect from 1 July 2005). 1Factual background[2] The appellant, Mr McEnteer, suffered a severe headache and went to his doctor. He was admitted to Waikato Hospital the following day, where a CT scan revealed an aneurysm on an artery in his brain. The aneurysm had caused an extensive haemorrhage. [3] The appellant was transferred to Auckland Hospital where he underwent neurosurgery to remove the aneurysm. In the course of the surgery it was discovered that the dome of the aneurysm had adhered to another artery. While it was being dissected, the aneurysm ruptured, resulting in a bleeding tear. This proved difficult to control. The arteries had to be clipped temporarily, both to control the bleeding and to enable the surgeon to expose the aneurysm. The arteries were clipped three times, for periods of between 12 to 18 minutes. Clipping of arteries is standard procedure in such operations and, if done for short periods, creates only a small risk of injury. In the appellant's case, however, the total period of clipping exceeded 40 minutes. This was longer than the usual total clipping time of 12 to 15 minutes but was seen as necessary to save the appellant's life. [4] The surgeon was successful in occluding the aneurysm. However, after the operation, the appellant's cognitive functions were assessed by a neuropsychologist who noted a range of impairments, summarised as disorientation, confusion, severely1 The title of the Act has been amended to the Accident Compensation Act 2001, with effect from 3 March 2010.impaired memory and ability to focus, disinhibition and abusiveness. Since that assessment, the appellant's condition has improved slowly, but he remains impaired in the sense that he continues to exhibit behavioural problems and his processing speed has been significantly affected. As a result of his condition, he is no longer able to support his wife and child. [5] The case stated records that the parties' agreement that: (a) There was no fault in the surgical or medical treatment that the appellant received. Rather, appropriate levels of skill and care were employed. The total temporary clipping time, exceeding 40 minutes, was needed to occlude the aneurysm. (b) The appellant's cognitive impairments were a personal injury. The issue is whether they were a treatment injury. (c) The personal injury was caused by the treatment that the appellant received. It was the result of the length of time during which temporary clipping was needed in the operation.The appellant's claim[6] The appellant made a treatment injury claim under s 32 of the Act. Section 32 provides:32 Treatment injury(1) Treatment injury means personal injury that is– (a) suffered by a person– (i) seeking treatment from 1 or more registered health professionals; or (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or (iii) referred to in subsection (7); and (b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including– (i) the person's underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: (a) personal injury that is wholly or substantially caused by a person's underlying health condition: (b) personal injury that is solely attributable to a resource allocation decision: (c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. [7] In December 2005, the Accident Compensation Corporation (the Corporation) declined cover on the basis that the appellant's mental injury did not constitute a "treatment injury". That decision was upheld by a review officer, but overturned by Judge Cadenhead. 2[8] Judge Cadenhead held that the terms "necessary part" and "ordinary consequence" in s 32(1)(c) provided two independent avenues for recovery, by which he meant that, to be excluded, a personal injury had to be both a necessary part of the treatment and an ordinary consequence of it.3 If one or other element was missing, there was coverage. The Judge found that the operation and the prolonged clipping were a necessary part of the medical treatment.4 However, he concluded that the prolonged clipping was not an ordinary consequence of the treatment.5Rather, he found that the appellant's impairment was caused by the prolonged clipping and that was a "substantial intervening cause that was a distinct and separate cause from the underlying condition: that is a novus actus interveniens." 62 McEnteer v Accident Compensation Corporation DC Hamilton 105/2008, 15 May 2008.3 At [23]–[24].4 At [27].5 At [58].6 At [59].[9] On appeal to the High Court, Dobson J overturned Judge Cadenhead's decision.7 He concluded that the assessment of what constituted a necessary part or ordinary consequence of the treatment had to be undertaken after the treatment had taken place and in light of the actual condition of the patient as it was revealed in the course of the treatment. 8 Further, he did not agree with Judge Cadenhead that "necessary part" and "ordinary consequence" were cumulative requirements for exclusion of cover. He said that the "usual meaning of [s 32(1)(c)] must be that either circumstance is sufficient to take such an injury outside that for which cover would be provided." 9 Although Dobson J rejected Judge Cadenhead's analysis, he referred the matter back to the District Court so that the question whether the prolonged clipping, and the injury it caused, was a necessary part or ordinary consequence of the treatment could be reargued in the light of his conclusions as to the proper interpretation of s 32(1)(c). 10[10] The appellant sought leave to appeal against Dobson J's decision, an application which the Corporation did not oppose. Simon France J granted leave. 11Issue[11] The question on which leave to appeal was granted is:When assessing, under s 32(1)(c) of [the Act] whether a personal injury caused by treatment is "a necessary part or ordinary consequence of the treatment" is treatment to be taken to be the treatment that was thought to be needed before the treatment was provided, or the treatment that was needed once the nature of the claimant's condition became apparent during the course of treatment?7 Accident Compensation Corporation v McEnteer HC Wellington CIV-2008-485-1800, 1 December 2008.8 At [19].9 At [21]. See also [23].10 At [35].11 Accident Compensation Corporation v McEnteer HC Wellington CIV-2008-485-1800, 26 March 2009.Discussion[12] As the wording of the question reveals, the essential dispute between the parties concerns the time at which the assessment of whether a personal injury is a "necessary part" or "ordinary consequence" of the treatment is to be made. [13] Mr Gorringe for the appellant argued for a prospective approach. He submitted that the assessment of what constitutes a necessary part or ordinary consequence of treatment is to be made in terms of what is anticipated to happen in the course of the treatment (ie before it actually begins). In the present case, the surgeon knew that certain steps would have to be taken in the course of treatment, including the temporary clipping of arteries. Cover for injuries arising out of those steps would be excluded. But it was not known that the aneurysm would rupture and that that occurrence would necessitate longer clipping that would normally be required. It was this unanticipated development in the course of treatment that caused the appellant's injuries, so that there was cover. [14] Mr Radich for the Corporation argued that "treatment" in s 32(1)(c) means the treatment that was actually required once the nature of the patient's condition became apparent during the course of the treatment. His reasons largely reflected those that had persuaded Dobson J. [15] Like Dobson J, we are satisfied that the Corporation's interpretation is correct. As our reasons are essentially the same as his, we will set them out briefly. [16] First, there is nothing in the language of s 32(1) which supports the appellant's interpretation. Rather, the language of the subsection is against it. Under s 32(1)(c), whether an injury is a necessary part or ordinary consequence of treatment is to be assessed "taking into account all the circumstances of the treatment", including "the person's underlying health at the time of the treatment." If Mr Gorringe is right, those two elements – the circumstances of the treatment and the patient's underlying health – would have to be assessed prospectively, before treatment commenced. That is, they would be anticipated rather than actual elements in the analysis. There is no linguistic basis for this approach. The references tocircumstances and underlying health point to an approach based on actuality, not supposition. The language of s 32(2)(a) also supports an approach based on actuality. [17] Second, from a policy perspective, Mr Gorringe's approach is artificial and introduces undesirable complexity and uncertainty into the analysis. [18] It is artificial because it requires that an attempt be made to assess what medical professionals might reasonably anticipate to be a necessary part or ordinary consequence of particular treatment in the abstract rather than on the basis of what actually emerges during the course of treatment. Dobson J recorded that Mr Radich argued in the High Court that Mr Gorringe's approach required an "abstracted expectation of the 'average outcome' or 'norm' for the medical procedures of that type". 12 Dobson J accepted that there was nothing in the provisions to suggest such an abstracted consideration. 13 We agree with that. In the present case, before the operation began and the precise nature and location of the aneurysm was known, the surgeon could not predict with assurance the exact treatment required or the most likely outcome. Rather, he was faced with performing surgery with a range of possible risks attached to it depending upon what he found in the course of performing it. [19] Mr Gorringe's argument introduces undesirable complexity and uncertainty because it is based on a hypothetical treatment of the patient, not on the treatment that was actually required in light of what emerged during the course of treatment. This seems to us to open up much scope for dispute, for no discernable reason. It is difficult to see why Parliament would wish to adopt such an approach, and we would not attribute such an intention to Parliament without clear language to that effect. [20] We consider that s 32(1)(c) requires an analysis that is rooted in the facts of the particular case – what was the injury suffered? Was it suffered in the course of the treatment undertaken? Was that injury a necessary part or ordinary consequence of that treatment? The third question in particular requires expert opinion, but not12 At [7].13 At [13].expert opinion in the abstract; rather, it requires expert opinion reflecting what actually occurred.Decision[21] We dismiss the appeal. We answer the question set out at [11] above as follows: For the purposes of s 32(1)(c), the relevant treatment is the treatment that was needed once the nature of the claimant's condition became apparent during the course of treatment. [22] The Corporation accepted that the matter should be referred back to the District Court for determination of the question whether cover was available to the appellant on the basis that the prolonged clipping of the arteries, and the resulting injury, was neither a necessary part nor an ordinary consequence of the treatment. Accordingly, we confirm that order. [23] As the appellant was legally aided, we make no order for costs.Solicitors: Gavin Boot Law, Hamilton for Appellant Minter Ellison Rudd Watts, Wellington for Respondent