Marks v Director of Health and Disability Proceedings [2009] NZCA 151; [2009] 3 NZLR 108; (2009) 19 PRNZ 459 (28 April 2009)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA67/2008
[2009] NZCA 151

BETWEEN JOHN MARKS
Appellant

AND THE DIRECTOR OF HEALTH AND DISABILITY PROCEEDINGS
Respondent

Hearing: 17 February 2009

Court: Glazebrook, Arnold and Baragwanath JJ

Counsel: C J Hodson QC and R Scott for Appellant
K P McDonald QC for Respondent

Judgment: 28 April 2009 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The matter is returned to the Human Rights Review Tribunal for determination in accordance with this judgment.

____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Table of Contents

Para No
Introduction [1]
The parties’ contentions [6]
Examination of the provisions of the HDC Act [10]

Purpose of the Act [10]

Complaints and the Code [14]

Lack of definition of the term aggrieved person [20]

The term aggrieved person first appears [24]

Any person alleged to be aggrieved [28]

Reference to the Director [34]

Proceedings before the Tribunal [36]

Remedies [39]
The wider context [46]

Floodgates [47]

Conflict of duties [48]

Commissioner’s reports [51]

Common law [54]

Caselaw in other contexts [56]
Our overall assessment [59]
Result [68]

Introduction

[1] SW died on 15 October 1999 of injuries that he inflicted on himself in an attempt to commit suicide. Dr Marks, a consultant psychiatrist employed by the relevant District Health Board, had been treating SW for eight months before this. SW’s parents, who had been heavily involved in SW’s mental health care, complained to the Medical Practitioners Disciplinary Tribunal, which found Dr Marks guilty of professional misconduct in his care of SW. It made various orders imposing penalties and restrictions on his practice. The District Court substantially dismissed an appeal against those findings.
[2] SW’s parents also complained to the Health and Disability Commissioner, who referred Dr Marks to the Director of Health and Disability Proceedings (the Director). On behalf of SW’s parents, the Director brought a claim under the Health and Disability Commissioner Act 1994 (the HDC Act) in the Human Rights Review Tribunal (the Tribunal). The claim brought by the Director seeks a declaration of a breach of the Code of Health and Disability Services Consumers’ Rights (the Code) when providing health services to SW. It also seeks damages of $40,000 on account of humiliation, loss of dignity and injury to feelings suffered by SW’s parents. Dr Marks accepts, for the purposes of this appeal, that the Director will be able to show that he breached the Code with regard to SW’s care.
[3] Dr Marks applied to the Tribunal to strike out the damages claim, contending that it had no jurisdiction to award damages to SW’s parents, who were not consumers of his health services. The HDC Act allows any person (a complainant) to make a complaint to the Commissioner but only an “aggrieved person” may be awarded damages under s 57 of the HDC Act. Dr Marks maintains that SW’s parents are not aggrieved persons.
[4] The Tribunal dismissed the strikeout application. Dr Marks applied for judicial review of that decision. On 28 January 2008, Miller J, in Marks v Director of Health and Disability Proceedings [2008] NZHC 20; [2008] NZAR 168, rejected Dr Marks’ application. Miller J held that the term aggrieved person in the HDC Act is not confined to consumers of health services as defined in the Code. That being so, he considered that it was open to the Tribunal to conclude on the facts that SW’s parents were aggrieved persons.
[5] Dr Marks appeals against Miller J’s decision. The issue in the appeal is whether Miller J was correct to hold that SW’s parents can be aggrieved persons in whose favour damages may be awarded under s 57 of the HDC Act. We begin our consideration by outlining the parties’ contentions in relation to the appeal.

The parties’ contentions

[6] As in the Court below, Mr Hodson QC, on behalf of Dr Marks, submits that the term aggrieved person in the HDC Act is limited to consumers who have rights under the Code. Mr Hodson relies on the scheme of the HDC Act as a whole and the manner in which the term aggrieved person is used in the Act to support this contention. Mr Hodson submits that there is nothing in the legislative history to suggest that Parliament intended a change to the common law position of secondary victims. Mr Hodson acknowledges that, in the context of discrimination cases in the Tribunal, the term aggrieved person has been given a wide meaning but says that there are differences in the statutory scheme. Mr Hodson also relies on comments made by the Commissioner in his reports to Parliament which, in Mr Hodson’s submission, support the interpretation he advances. Finally, Mr Hodson submits that enabling persons other than consumers under the Code to recover damages would lead to a flood of claims and create conflicting duties for health practitioners.
[7] Ms McDonald QC, on behalf of the Director, supports Miller J’s decision. In her submission the term aggrieved person should not be interpreted in an unduly restrictive manner. She submits that there is nothing in the Parliamentary history to suggest that Parliament meant the term to be given other than its ordinary meaning. The HDC Act clearly distinguishes between consumers under the Code, health consumers generally and aggrieved persons, indicating that they mean different things. In addition, case law under the HDC Act, and human rights legislation more generally supports a generous interpretation of the term aggrieved person.
[8] Ms McDonald submits that the comments of the Commissioner, on which Dr Marks seeks to rely, were made in another context and, in any event, cannot bind the Court. She also submits that the question of who is an aggrieved person is one of fact. In order for a person to fall within the ambit of the term, she submits that there must be a connection, greater than the public generally, with the consumer whose rights have been breached. This requirement will, in her submission, prevent the floodgates being opened. Further, the duty of a health practitioner remains to the consumer under the Code. There are thus no conflicting duties.
[9] In order to assess these submissions, we first analyse the provisions of the HDC Act in some detail. We then examine the issue in its wider context, before undertaking our overall assessment of the meaning of the term aggrieved person under the HDC Act.

Examination of the provisions of the HDC Act

Purpose of the Act

[10] The purpose of the HDC Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights: s 6 of the HDC Act. (As we are concerned in this judgment with a health care provider, we do not specifically discuss in this judgment disability services consumers or providers.)
[11] The term “health consumer” is defined in s 2 of the HDC Act non-exclusively to include any person on or in respect of whom any health care procedure is carried out. “Health care procedure” is defined to mean any health treatment, health examination, health teaching or health research administered to or carried out on or in respect of any person by any health care provider and includes any provision of health services to any person by any health care provider. “Health services” are widely defined to mean services to promote and protect health and to prevent disease or ill-health as well as treatment, nursing, pyschotherapy, counselling, diagnostic and rehabilitative services.
[12] Mr Hodson relies on the fact that the purpose of the HDC Act is to secure the rights of health services consumers to support his argument that aggrieved persons must be health consumers.
[13] We do not accept that this is necessarily so. The HDC Act allows members of the public to complain about breaches of the Code, presumably because it is considered that this may enhance the rights of health consumers. The Act therefore may have contemplated that allowing a group with a close association to health consumers, as well as health consumers themselves, to claim damages could promote and protect the rights of health consumers, by giving a wider group an incentive to bring health professionals to account for breaches of the Code. Further, health consumers are, in any event, defined non-exclusively. Depending on the context, the term could therefore include “secondary” consumers of health services such as caregivers.

Complaints and the Code

[14] Part IV of the HDC Act deals with complaints and investigations. There is a general right to make complaints in s 31(1), which provides that any person may lodge a complaint with the Commissioner that any action of a health care provider is or appears to be in breach of the Code. (There is also the right to complain to a health advocate but for present purposes it suffices to refer only to the Commissioner.) Section 31(2) allows complaints to be made with regard to actions that affected health consumers before 1 July 1996 in certain circumstances.
[15] The Code was established under the HDC Act. Under the Code, every consumer has the rights in the Code, which include the right to have services provided with reasonable care and skill and in a manner consistent with his or her needs. A consumer is defined in Schedule 4 of the Code as a health consumer or a disability services consumer and, in relation to the relevant provisions of the Code, a person entitled to give consent on behalf of a consumer.
[16] Mr Hodson submits that, as the coverage of the Code is limited to consumers as defined in the Code, a person can only be aggrieved by a breach of the Code if he or she is covered by the Code. Mr Hodson points out that, when the HDC Act was passed, the Code had not been promulgated. In his submission, this is a possible explanation for the use of the term aggrieved person in the HDC Act, rather than health consumer or consumer. It could have been designed to cover the position that would have arisen if the Code had applied more widely than to direct consumers of health services or where it may do so in the future.
[17] The first point we make is that the term aggrieved person must be wider than health consumer as defined in the HDC Act, as it must (as Mr Hodson accepts) include persons whose derivative informed consent rights (i.e. rights to consent on behalf of another) under the Code have been breached. The fact that only consumers have rights under the Code does not, however, necessarily mean that secondary victims are not aggrieved persons. Their grievance would, however, have to relate to a breach of the Code with regard to a consumer as defined in the Code. As noted above at [12], it may have been contemplated that the ability of those closely associated with health consumers to claim damages could enhance the rights of health consumers. It is thus not necessarily inconsistent with the scheme of the Act that those closely affected by breaches of the Code have similar rights to health consumers.
[18] We do, however, agree with Mr Hodson’s submission that the fact that the Code had not been promulgated at the time the HDC Act was passed is a possible explanation for the use of the more general term aggrieved person in the Act. It is also possible that the term was used to cover extensions of the coverage of the Code in the future. There continue to be proposals to extend the coverage of the Code to include duties to relatives and caregivers but these have not been taken up because of concerns about creating conflicting duties on health service providers: see for example Report to Minister of Health, A Review of the Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights (June 2004) at 9 – 10.
[19] For completeness, we note that we do not consider that there is much significance in the fact that the term aggrieved person is not used in the primary complaint section. This is explainable by the fact that the complaint function can be exercised by any member of the public (but see our comments at [26] below). Likewise, the fact that s 31(2) is limited to actions affecting health consumers before 1 July 1996 is of limited significance in the assessment of the meaning of the term aggrieved person. The term is used in a different context (i.e. where there is a Code) and covering a different period.

Lack of definition of the term aggrieved person

[20] In Ms McDonald’s submission, if Parliament had meant to limit the term aggrieved person to those covered by the Code then it would have said so. Ms McDonald, as Miller J did, relies on the fact that there is no definition of aggrieved person to argue that it should be given its ordinary meaning. Miller J noted that, according to the Oxford English Dictionary, a person is “aggrieved” when injured or wronged in his or her “rights, relations, or position” or where he or she is “injuriously affected by the action of any one”. He also noted that case law confirms that a person need not be a primary victim to be “aggrieved”: Attorney-General of The Gambia v N’jie [1961] 2 All ER 504 (PC) and Arsenal Football Club Ltd v Smith (Valuation Officer) and another [1977] 2 All ER 267 (HL).
[21] Ms McDonald, in support of the proposition that the term aggrieved person should be given a liberal, non-technical meaning, referred to case law under the HDC Act, the human rights legislation and more generally: see, for example, Director of Proceedings v O’Neill [2001] NZAR 59 (HC), Attorney-General v The Human Rights Review Tribunal [2006] NZHC 1661; (2006) 18 PRNZ 295, New Zealand Freedom from Discrimination Group v New Zealand Grand Lodge of Freemasons [1980] 2 NZAR 401 and Amaltal Fishing Co Ltd v Nelson Polytechnic [1996] NZCRT 1; [1996] NZAR 97, Edmonds Judd v Official Assignee [1999] NZCA 283; [2000] 2 NZLR 135 (CA) and Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health and another [1995] FCA 1060; (1995) 128 ALR 238.
[22] In the Right to Life case the Federal Court of Australia (General Division) considered whether the Right to Life Association was a “person aggrieved” within the meaning of the Administrative Decisions (Judicial Review) Act 1977. Lockhart J, for the Court, emphasised the need to consider the construction of this phrase in the context of the particular statute. He said at 251 252:

... The words “person aggrieved” or like words such as “person with affected interest” or “person interested” derive their meaning and take their colour from the context in which they appear and in the light of the particular statute concerned. It is important to determine what the words mean in the statutory context in which they are placed. Courts have shown an increasing tendency, not always consistent, to construe expressions such as ‘person aggrieved’ liberally. ...

The meaning of ‘a person aggrieved’ is not encased in any technical rules; much depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public.

The applicant’s interest must not be remote, indirect or fanciful. The interest must be above that of an ordinary member of the public and must not be that of a mere intermeddler or busybody. ...

Plainly the applicant need not have a legal, financial or proprietary interest in the subject matter of the proceeding. The applicant must establish that he is a person who has a complaint or grievance which he will suffer as a consequence of the decision beyond that of an ordinary member of the public.

[23] It is certainly a strong point in favour of the Director that a term which normally has such a broad import as the term aggrieved person was used in the HDC Act, without any limiting definition provided. However, the strength of this point is diminished by the fact that it would not have been sufficient for Parliament merely to have substituted the term health consumer or consumer for aggrieved person. Not all consumers will suffer from a breach of the Code, or consider that they have so suffered. Thus, not all consumers will have grounds to make a complaint. The term aggrieved person could simply be shorthand for a consumer whose rights under the Code have been breached, or who considers that to be the case.

The term “aggrieved person” first appears

[24] Where a complaint is made or referred to the Commissioner, he or she may investigate it, take no action, call a conference, or refer the complaint in whole or in part to other bodies. For example, s 34(1)(b) of the HDC Act provides that the Commissioner may refer the complaint to the Accident Compensation Corporation if it appears from the complaint that the aggrieved person may be entitled to cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (ACC Act). This is the first time the term, aggrieved person, is used in the HDC Act.
[25] Mr Hodson submits that it is clear from s 34(1) that the aggrieved person must be the consumer of health services as no-one else could be entitled to accident compensation (ACC) cover. We do not accept that submission.
[26] Section 34(1) does not contemplate that all complaints will be referred to the Corporation. Neither does it assume that all aggrieved persons will have cover. This is understandable, as clearly not all health consumers would have ACC cover. In any event, in limited circumstances, secondary victims can have entitlements under the ACC Act (for example on the death of a primary victim).
[27] Having said all that, we consider that there may be some significance in the fact that the first time the term aggrieved person appears in the HDC Act it does so (undefined) in what may be thought of as a mechanical provision dealing with ACC cover.

Any person alleged to be aggrieved

[28] The next usage of the word aggrieved is not in the term aggrieved person but in a phrase “the person alleged to be aggrieved”. Section 38 of the HDC Act applies where the Commissioner is deciding whether or not to take action on the complaint. One of the matters to be taken into account in this regard is whether “the person alleged to be aggrieved” does not want any action to be taken: s 38(2)(d) of the HDC Act.
[29] It is arguable that the phrase, person alleged to be aggrieved, in this section, refers only to the person whose rights under the Code have been breached, as a complaint necessarily has to identify a breach of the Code with regard to a person covered by the Code. If that is so, this may be a strong indication that the term aggrieved person is also so limited when it is used elsewhere in the Act. It is unlikely that the word aggrieved has a wider meaning in the term aggrieved person than in the phrase used in s 38.
[30] In addition, if the person alleged to be aggrieved in s 38 has a wider meaning than the person whose rights under the Code were alleged to have been breached, then the prospect could arise of there being different views among the various aggrieved persons as to whether action should be taken. One might have expected Parliament to have attempted to resolve such conflicts in advance and provide, for example, that primacy was to be given to the views of the person whose rights under the Code had been breached. That this was not done may be an indication that it was intended that persons alleged to be aggrieved is limited to those covered by the Code.
[31] The same phrase, person alleged to be aggrieved, is used in s 41 of the HDC Act, which provides that, before proceeding to investigate a matter, the Commissioner must, by written notice, inform the complainant, if any, the health care provider to whom the investigation relates, and “any person alleged to be aggrieved (if not the complainant)” of the investigation. When the investigation is completed the Commissioner must advise “any complainant whose complaint led to the investigation”, any person alleged to be aggrieved (if not the complainant), and the health care provider of its results: s 43 of the HDC Act.
[32] This raises the issue of how the Commissioner would be in a position to know whether anyone, other than the person whose rights under the Code have allegedly been breached, may be aggrieved. In this context, however, any duty may be limited only to those identified as being aggrieved in terms of the complaint. This, however, provides a prospect of the term having an ambulatory meaning, depending on the ambit of any complaint and whether any secondary victims are identified in the complaint along with the primary victim.
[33] For completeness, we note that the first use of the phrase, person alleged to be aggrieved, is in s 30(h), which states that one of the functions of an advocate is to assist the person alleged to be aggrieved for the purposes of endeavouring to resolve the complaint by agreement between the parties concerned. The same comments as set out above apply also to this section.

Reference to the Director

[34] If the Commissioner concludes that any action that was the subject of the investigation breached the Code, the Commissioner may, among other things, refer the health care provider to the Director for the purpose of deciding whether certain actions should be taken: s 45(2)(f). Section 44 of the HDC Act requires consultation before any matter is referred to the Director. Under s 44(2) the Commissioner must have regard to any relevant factors of the kind specified in s 44(3) when deciding on this issue. Section 44(3)(a) provides that one of those factors is the wishes of the complainant (if any) and the aggrieved person (if not the complainant) in relation to the matter.
[35] There is no obvious reason why the term aggrieved person is used in this section rather than the phrase, the person alleged to be aggrieved, as used in s 41. If the former term is not limited to those identified in the complaint, however, then this also raises the issue identified above at [32], of whether the Commissioner would be in a position to ascertain all the secondary victims who may be aggrieved by any breach of the Code.

Proceedings before the Tribunal

[36] The actions that may be taken by the Director include the institution of proceedings before the Tribunal. Section 50(4) provides that, where proceedings are commenced by the Director, neither the complainant (if any) nor the aggrieved person (if not the complainant) shall be an original party to, or, unless the Tribunal otherwise orders, join or be joined in any such proceedings. Since an amendment to the HDC Act in September 2004, where the Commissioner finds a breach of the Code but fails to refer the health care provider to the Director, or the Director declines or fails to take proceedings, an aggrieved person, whether personally or by anyone authorised to act on his or her behalf, may bring proceedings against the health care provider before the Tribunal: s 51 of the HDC Act.
[37] Mr Hodson relies on the fact that s 51 does not allow all complainants to institute proceedings to support his interpretation of the term aggrieved person. We agree that there is a distinction between a complainant and an aggrieved person (and so does Ms McDonald). Effectively, aggrieved persons are a subset of complainants, who can be members of the general public with no interest in the case other than pure altruism. That there is a distinction between complainants and aggrieved persons does not, however, help in deciding the exact ambit of the term aggrieved person.
[38] If the term aggrieved person is wider than the person whose rights under the Code have been breached then s 51 might be thought to raise the possibility of a secondary victim of any breach taking action in cases where the primary victim may not wish to do so. This would seem to undermine the purpose of the HDC Act and the emphasis that both the Act and the Code place on the autonomy of health consumers. As noted above at [30], one might have thought that the resolution of any conflicts between primary and secondary victims would have been anticipated by Parliament and resolved if the term aggrieved person was intended to cover secondary victims as well as those whose rights under the Code had been breached.

Remedies

[39] In any proceeding before the Tribunal, the Director or the aggrieved person may seek such of the remedies described in s 54 as he or she thinks fit: s 52. These remedies include declarations, orders in the nature of injunction, damages in accordance with s 57 and an order that the defendant perform any acts specified in the order “with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach”.
[40] As a general matter, under s 57, damages may be awarded only if the Director establishes that losses in the categories specified in s 57 were caused by the defendant’s breach of the Code. Section 57 provides:

57 Damages

(1) Subject to section 52(2) of this Act, in any proceedings under section 50 or section 51 of this Act, the Tribunal may award damages against the defendant for a breach of any of the provisions of the Code in respect of any one or more of the following:

(a) Pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:

(b) Loss of any benefit, whether or not of a monetary kind, which the aggrieved person might reasonably have been expected to obtain but for the breach:

(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved person:

(d) Any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.

(2) Subject to subsections (3) to (5) of this section [dealing with minors, mentally disordered persons or those whose property is being managed under the Protection of Personal and Property Rights Act 1988], the Commissioner shall pay damages recovered by the Director of Proceedings under this section to the aggrieved person on whose behalf the proceedings were brought.

[41] Under s 52(2), if a person has suffered personal injury covered by the ACC Act, no damages arising directly or indirectly out of that personal injury may be claimed by or on behalf of that person apart from “punitive damages” in terms of s 57(1)(d) of the HDC Act.
[42] Mr Hodson submits that the particular heads of damages in s 57(1) point strongly to the term aggrieved person being limited to those covered by the Code. With regard to the head of damages in s 57(1)(a), he submits that the claimant must be directly involved in the transaction or activity covered by the Code to recover loss or expenses related to the breach. Although the ambit of s 57(1)(b) is not clear, Mr Hodson submits that it is difficult to see how the type of loss detailed in that paragraph could be suffered by a claimant who is not a person covered by the Code. He also submits that the s 57(1)(d) reference to the rights of an aggrieved person is a very clear indication that the aggrieved person must be a consumer. Only a consumer has rights under the Code. That s 57(1)(a), (b) and (d) are limited to consumers under the Code suggests, in Mr Hodson’s submission, that s 57(1)(c) is also so limited. Further, Mr Hodson submits that it is difficult to see how secondary victims could suffer humiliation or loss of dignity through a breach of the Code with regard to a primary victim. Mr Hodson submits that this suggests that the third head of damage within s 57(1)(c), “injury to feelings”, should also be limited to primary victims.
[43] We accept Mr Hodson’s submission that the particular heads of damages he identifies could only be claimed by a person whose rights have been breached under the Code. We also agree that it is difficult to see how any person other than the person with rights under this Code and directly affected by any breach, could suffer humiliation and loss of dignity. While secondary victims could have injury to feelings, we agree with Mr Hodson that the fact that this is the only head of possible damages that could conceivably apply to secondary victims points towards that head of damage also being limited to primary victims.
[44] In addition, there would be difficulties in assessing the causal link between breach of the Code and injury to feelings if secondary victims were included, particularly if the breach of the Code was not witnessed directly. If secondary victims were included, the phrase “injury to the feelings” would likely have to be interpreted restrictively to ensure the proper causal link to the breach of the Code (as against a link to the health outcomes resulting from the breach). However, the purpose of the HDC Act would suggest that the phrase “injury to the feelings” should be interpreted broadly with regard to those directly affected by the breach. This may thus also suggest that the power to claim damages for “injury to the feelings” should be limited to primary victims.
[45] We also note that if aggrieved person was interpreted to include secondary victims s 52(2) may bar a damages claim for the primary victim if that victim is covered by ACC but not for a secondary victim. This may create at least the perception of unfairness and would not appear to accord with the purpose of the HDC Act.

The wider context

[46] A number of extrinsic factors were relied on by the parties. We examine these in turn.

Floodgates

[47] Mr Hodson emphasises that there is a potentially wide scope of claims for damages if they are not confined to consumers. To a degree we agree, as noted in our discussion of damages above at [44]. However, as Miller J pointed out, a person would not be aggrieved unless injuriously affected by the actions of the health care provider in breaching the Code. This would therefore limit the scope for secondary victims to claim damages as any such victims would need to have a connection to the primary victim which is greater than the public at large (see at [7] above). Ms McDonald informs us that, in any event, there are very few cases of secondary victims currently waiting in the wings. The concern about floodgates may thus be misplaced.

Conflict of duties

[48] Mr Hodson also argues that liability to others may compromise a health care provider’s duty to his or her patient.
[49] Miller J considered that, if the legislation introduces a duty to others who may be injuriously affected by the health care provider’s actions, it is not obvious that the primary duty to the consumer or patient will be compromised as a result. This is because liability to others rests on a breach of the Code with regard to the consumer.
[50] We agree with Miller J that, in strict legal terms, this is the position. As a practical matter, however, it is possible that a health provider may find him or herself presented with a situation where caregivers have a different view from the primary health consumer of what is required under the Code. This may cause a health professional to perceive a conflict of duties, even if one does not in fact exist.

Commissioner’s reports

[51] Mr Hodson places reliance on how the Commissioner in his various reports to Parliament has interpreted the HDC Act relating to the right to claim damages and to take proceedings. The Commissioner has interpreted these rights as limited to consumers as defined in the Code.
[52] We do not consider that reliance can be placed on the Commissioner’s reports. The Commissioner has obviously taken the view in this case that it is appropriate to refer the case of SW’s parents to the Director. This suggests that he does not consider himself bound by any views he may have expressed in his reports. He is correct to take that position. It is for the Courts and not the Commissioner to interpret the legislation.
[53] We are cognisant that the Commissioner’s reports are tabled in Parliament. This may be significant in interpreting legislation if changes are made to the legislation as a result. Such reports may also have some significance if specific changes are recommended but not made. However, any inference that the legislation has remained unamended because Parliament has consciously accepted the Commissioner’s interpretation would have to be drawn with caution. Unless some positive action was taken, it could not be certain whether Parliament was merely noting the reports or whether it was endorsing their contents.

Common law

[54] Mr Hodson also puts reliance on the position of secondary victims at common law, which has most recently been elucidated in van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179 (CA). Ms McDonald accepts that at common law a secondary victim must prove a “recognisable psychiatric disorder or illness” but submits that reference to common law cases on primary and secondary victims is of limited assistance in this jurisdiction.
[55] We accept Ms McDonald’s submission. In this instance, we do not find comparisons with the common law position of particular assistance. The legislation established a distinctive regime which departed radically from the former common law position. The HDC Act must also be seen against the background of the ACC regime which, from its inception until 1992, covered mental trauma not associated with physical injuries.

Case law in other contexts

[56] Ms McDonald relies heavily on the cases interpreting the term aggrieved person in the context of anti-discrimination legislation, pointing out that the Tribunal is common to both litigation under that legislation and that under the HDC Act. She also relies on case law in other contexts and on the case of O’Neill in the HDC Act context.
[57] We do not find it helpful to refer to case law in unrelated statutes. We do agree that it would normally be expected that the same term used in two pieces of legislation dealing with rights, and which share the same Tribunal, would have the same meaning. However, the decisions under the HDC Act, although by the same Tribunal as under the Human Rights Act, are decided within a different statutory context. The meaning of the term in the HDC Act must be gleaned from the statutory provisions of the HDC Act.
[58] We accept that O’Neill was a case under the HDC Act and that it proceeded on the assumption that a baby’s parents could be aggrieved persons under that Act but the point was not fully argued. Further, as Ms McDonald acknowledges, the mother was a health consumer in her own right.

Our overall assessment

[59] We do not find the extrinsic factors identified by either party of much assistance in assessing the meaning of the term aggrieved person as used in the HDC Act. The factors identified are balanced relatively evenly between the two interpretations. The meaning must therefore be ascertained from the HDC Act itself.
[60] On our review of the provisions of the HDC Act, the factor most in favour of the Director’s position is that the term aggrieved person is not defined and that it is usually a term of wide import. An examination of the detailed provisions of the HDC Act, however, on balance favours Dr Marks’ position that the term aggrieved person is intended to cover consumers who have rights under the Code.
[61] Further, we consider that there would be difficulties in defining which secondary victims can be aggrieved persons. Ms McDonald was not able to be more precise in her definition than proposing that it would be a question of fact in each case but that such victims must have a connection to the primary victim greater than the public at large (see at [9] above). We suspect this test would encompass too large a group and would also risk not being interpreted in the same manner by differently constituted tribunals. We also consider that there would be issues in determining what causal link is required between the breach of the Code and the situation of the secondary victim and then in deciding on when that causal link is proved. Ensuring an appropriately close causal link between the breach of the Code and any damage suffered by secondary victims could risk narrowing the ambit of the HDC Act remedies for primary victims, contrary to the purpose of the Act, as noted above at [44]. Moreover, as we note above at [50], there may also be conflicts between primary and secondary victims that are not resolved by the HDC Act.
[62] For all of the above reasons we hold that only consumers with rights under the Code can be aggrieved persons under the HDC Act.
[63] We have two caveats. The first caveat relates to the position of fathers of babies in the course of pregnancy and the birth process. Because of the recognition of the increased role of fathers in that regard, it may be that they could be seen to be derivative consumers in their own right and thus aggrieved persons under the HDC Act. This appears to have been the view (obiter) of Blanchard and Glazebrook JJ in Harrild v Director of Proceedings [2003] NZCA 125; [2003] 3 NZLR 289 at [74] and (implicitly) of McGrath J at [81]. Elias CJ left open the question as to the father’s entitlement to damages at [14], while the issue was not examined by Keith J. We leave that point open. We are thus not to be taken as overruling O’Neill, insofar as it relates to the position of fathers.
[64] The second caveat relates to the position if the person whose rights have been breached under the Code has died. The parties are agreed that the standing of SW’s estate is expressly preserved by s 51 of the HDC Act as an executor would be, in terms of that section, a person authorised to act on an aggrieved person’s behalf. Mr Hodson also refers to s 3(1) of the Law Reform Act 1936, which provides that, subject to certain requirements, on the death of any person all causes of action (except defamation or inducing one spouse to leave or remain apart from the other) subsisting against or vested in him or her shall survive against or, as the case may be, for the benefit of his estate.
[65] We consider, contrary to the parties’ submissions, that there may be uncertainty as to whether s 51 can apply where there is no subsisting complaint and where the person who died did not authorise a complaint being lodged before his or her death. Further, there may also be uncertainty whether a complaint procedure leading to a case being taken by the Director can be a “cause of action” in terms of s 3(1) of the Law Reform Act 1936, as it is an action taken by the Director rather than the complainant. Because of these uncertainties, we would extend the term aggrieved person in the HDC Act to cover a deceased person’s executors or administrators. It would be unsatisfactory if breaches of the Code with regard to deceased consumers remained without remedy. Where a consumer has died, there would be none of the possible conflicts referred to above at [30] and [38]. The executors or administrators would, however, be claiming on behalf of the deceased consumer and not in their own right.
[66] Ms McDonald submits that giving executors and administrators a derivative right only would effectively leave SW’s estate without remedy because damages under s 57(1)(d), being punitive damages, would be precluded by s 3(2)(a) of the Law Reform Act 1936, which precludes an estate from recovering exemplary damages. Further, there would be difficulties of proof with regard to the heads of damages under s 57(1)(a) to (c).
[67] We consider that there may be an issue as to whether the statutory s 57(1)(d) damages, albeit called punitive in s 57(2), are in fact caught by the Law Reform Act 1936 prohibition on exemplary damages, given that they are a statutory head of damages and given the purposes of the HDC Act. We are not, however, to be taken as expressing a view on that issue. In terms of the proof of the matters relating to the heads of damage in s 57(1)(a) to (c), we agree that there may be some difficulties in establishing the claim on behalf of the deceased person. However, we do not consider that, for example, the matters referred to in s 57(1)(c) are wholly subjective. Once the breach of the Code is established, the relevant humiliation, injury to feelings and loss of dignity could be inferred from the circumstances of the breach. We also note that, even if a damages claim cannot be sustained, there remains the possibility of a declaration under s 54(1)(a) of the HDC Act. Further, as happened in this case, there is also the avenue of a complaint to the relevant disciplinary body: see at [1] above.

Result

[68] The appeal is allowed and the matter is returned to the Tribunal to be determined in accordance with this judgment.
[69] We are unsure in this case if SW’s parents are his executors or administrators. If they are then, in terms of [65], the damages claim, albeit repleaded, may be able to proceed.
[70] The parties have leave to file a memorandum on costs if they cannot be agreed. Any such memorandum must be a joint memorandum setting out where the position of the parties differs and why. Any such memorandum must be filed on or before Tuesday 19 May 2009.

Solicitors:
Bartlett Partners, Wellington for Appellant
Office of the Health and Disability Commissioner, Wellington for Respondent