Robertson v Accident Compensation Corporation [2015] NZHC 2489 (12 October 2015)

Last Updated: 21 October 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-712 [2015] NZHC 2489

UNDER	the Accident Compensation Act 2001
IN THE MATTER	of an intended appeal under s 163 of that Act
BETWEEN	CASSANDRA ROBERTSON Applicant
AND	ACCIDENT COMPENSATION CORPORATION Resondent

Hearing:	11 May 2015 (Further submissions received 17 and 24 June 2015)
Counsel:	C L Hollingworth for Applicant A K Miller for Respondent
Judgment:	12 October 2015

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The applicant, Mrs Cassandra Robertson, has end-stage renal failure. She requires daily dialysis treatment. Mrs Robertson applies, pursuant to s 163 of the Accident Compensation Act 2001 (the Act), for leave to appeal to the Court of Appeal against a decision of this Court,¹ upholding a decision of the District Court² that Mrs Robertson does not have cover under the Act for the consequences of a

_{delay in diagnosis of the condition which is the cause of her renal failure.}

¹ _{Robertson v Accident Compensation Corporation [2014] NZHC 762.}

² _{Accident Compensation Corporation v Robertson [2011] NZACC 327 (DC).}

ROBERTSON v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2489 [12 October 2015]

Background

[2] The cause of Mrs Robertson’s renal failure is, she accepts, a condition known as IgA Nephropathy. That condition is also known – Wikipedia and the Mayo Clinic tell me – as Berger’s disease, an immune mediated condition with no known cause and which has no specific therapy.

[3] Mrs Robertson was diagnosed with IgA Nephropathy in late January 2004. She was, at the time, 30 years old and the mother of five children aged three to 13. The specialist who made that diagnosis was of the opinion that, in the years 2002 and 2003, there had been three clinical problems which should have alerted a physician to the presence of a chronic kidney problem.

[4] Mrs Robertson applied for cover, saying her renal failure was a treatment injury.

[5] The general purpose of the Act is, as is well known, to provide compensation and, as importantly, assistance in recovery, for persons who suffer injury by accident. The boundary of what is “injury by accident”, relative to the physical harm caused by disease, medical treatment and their effects, is not easy to fix. That is especially the case in the area of what can loosely be termed “medical misadventure”. Mrs Robertson’s application for cover, and ACC’s response both reflect the complexity of the scheme of the Act in this area. The operative provisions, for the purposes of this application, are ss 20, 26, 32 and 33.

[6] Section 20 determines when a person has cover, that is the right to the compensation and other benefits the Act provides. Subsection (1) reads:

A person has cover for a personal injury if—

(a) he or she suffers the personal injury in New Zealand on or after

1 April 2002; and

(b) the personal injury is any of the kinds of injuries described in s 26(1)(a) or (b) or (c) or (e); and

(c) the personal injury is described in any of the paragraphs in subs (2).

[7] The kinds of physical injury for which cover may be provided by the Act are, as s 20(1)(b) signposts, described in s 26(1)(a), (b), (c) and (e). Section 26(1)(b) lists:

(b) Physical injury suffered by a person, including, for example, a strain or a sprain.

[8] To that extent, end-stage renal failure (and other diseases) could give rise to physical injuries by reference to the damage they inflict on the body and could therefore possibly be covered.

[9] The boundary between physical injuries that are covered and not covered is set by s 20(2), which grants cover for personal injury by reference to its causes. It first recognises “personal injury caused by an accident to a person”, and then some nine further types of personal injury, including a number which are caused by disease and/or medical treatment. Accordingly, cover extends to the following “types” of personal injury:

(b) personal injury that is treatment injury suffered by the person:

...

(e) personal injury caused by a work-related gradual process, disease, or infection suffered by the person:

(f) personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person:

(g) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover:

...

[10] Treatment injury is defined in s 32(1) to mean personal injury suffered by a person receiving treatment, caused by treatment and not a necessary part, or ordinary consequence, of treatment.

[11] A treatment injury can include injury caused by a delay in treatment. This is clear from ss 33(1)(b) and (d) of the Act, where treatment is defined as:

33 Treatment

(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—

....

(b) a diagnosis of a person’s medical condition:

...

(d) a failure to provide treatment, or to provide treatment in a timely manner:

[12] Thus Mrs Robertson’s application was based on the proposition that the onset of her end-stage renal failure was a treatment injury, namely an injury that occurred due to a failure in diagnosis and early treatment.

[13] That is, however, not the end of matters. Under s 32(2)(a) a “treatment injury” does not include a personal injury that is “wholly or substantially caused by a person’s underlying health condition”. As Heath J observed in Accident Compensation Corporation v Stanley, the combined effect of ss 26(2), 20(2)(f),

33(1)(d) and 32(2)(a) is that:³

(a) A personal injury is not one caused wholly or substantially by a gradual process, unless it is a treatment injury as defined.

(b) A treatment injury can arise from a failure to provide treatment in a timely manner, but does not include a personal injury that is wholly or substantially caused by the underlying health condition.

[14] Thus ACC declined cover, saying Mrs Robertson’s renal failure was not a

treatment injury as it was caused by the underlying condition of IgA Nephropathy.

[15] ACC’s original decision to decline cover was quashed on review. The reviewer found that the effect of the delay in diagnosis was “a more rapid and aggressive progression of chronic kidney disease which caused a significant worsening in Mrs Robertson’s health”. There was, the reviewer concluded, an injury

_{caused by the delay in diagnosis.}

³ Accident Compensation Corporation v Stanley [2013] NZHC 2765 at [42].

[16] ACC appealed that decision successfully to the District Court. The District Court held that, whilst there had been a delay in diagnosis which amounted to a failure to treat in accordance with s 33(1) of the Act, that delay had not caused a treatment injury.⁴ In reaching that conclusion, Judge Beattie reasoned:

[26] ... I find as a fact that the medical condition suffered by the respondent was that of IgA nephropathy and that this was the respondent’s underlying health condition and not attributable to any treatment within the meaning of the Act, and that the condition of end-stage renal failure is the inevitable consequence of that underlying health condition and it is not a condition which could have been prevented by any earlier treatment.

[27] I find it therefore to be the case that because earlier diagnosis and dialysis treatment may have only slowed down the end consequence of end- stage renal failure, it does not bring about a new injury ...

[28] In those circumstances I find that the respondent’s medical condition of end-stage renal failure was wholly or substantially caused by her underlying condition ... and as such, her medical condition is excluded from being a treatment injury by reason of section 32(2)(a).

[17] In other words, Mrs Robertson’s renal failure was an underlying condition. That underlying condition was not caused by the failure to diagnose, and hence to treat. Earlier diagnosis would only have slowed down the end consequence of end-stage renal failure. That failure had not, therefore, “caused” that end-stage renal failure.

[18] Judge Beattie did acknowledge two decisions of the District Court where delay in treatment was seen as capable of giving rise to a treatment injury. In Grogan,⁵ Judge Barber was called on to decide whether the appellant had suffered a personal injury as a result of the delay in a diagnosis of bowel cancer. There, it appears to have been accepted that if Mrs Grogan could prove that timely diagnosis and treatment would have prevented the growth of a tumour to the extent that subsequently occurred, requiring major surgery and chemotherapy, cover may have been available. As a matter of fact, however, the Judge found that Mrs Grogan was

unable to establish that. Judge Barber concluded:

[17] ... Simply put, despite my strong suspicion that the appellant’s

_{tumour may have existed and been causing her pain on 9 June 2004, a}

⁴ _{Accident Compensation Corporation v Robertson, above n 2.}

⁵ Grogan v Accident Compensation Corporation [2010] NZACC 85.

conclusion to that effect would be mere speculation and unsupported by leading medical opinion.

[18] It follows that I must accept that the appellant cannot establish on the balance of probabilities, that she has suffered a personal injury as a result of the delay in diagnosis. Accordingly, this appeal is dismissed.

[19] Judge Beattie also referred to comments in the District Court decision of

Lewes where Judge Ongley said:⁶

[20] The conceptual problem in such an appeal is whether to regard each increment of progression of a disease as an element of damage or injury. I respectfully agree with the approach taken by Judge Beattie in the cases of Estate of Veysey and Luke ... to the effect that an injury occurs when the disease progresses beyond the stage at which treatment would have been effective. When a disease changes from a curable condition to an incurable condition there is without doubt an injury. There may also be an injury when a disease progresses to a stage at which treatment could have significantly less effect against the progress of the disease. Such a degree of change must depend on the evidence and circumstances of each case.

[20] In Mrs Robertson’s case, however, the delay had not had similar effect. What finally happened was always going to happen, whether or not there had been earlier diagnosis and treatment.

[21] Mrs Robertson sought, and the District Court granted, leave under s 162 of the Act for her to appeal that decision to this Court on a question of law. The stipulated question of law was:

Whether a personal injury caused by the accelerated progression of an incurable underlying disease condition resulting from a failure in diagnosis can be covered as a treatment injury under the Accident Compensation Act

2001.

[22] Goddard J characterised the issues before her in the following terms:⁷

[18] The question of law, as framed, envisages a negative act or omission (failure to diagnose and treat), operating as an accelerant of the inevitable natural progression of a terminal disease.

[19] However the question is framed, the issue inevitably is one of causation. The challenge is to find a causal link between that omission and the outcome, which Judge Beattie was not able to do.

⁶ Lewes v Accident Compensation Corporation DC Wellington Decision 221/2006, 14 September

_2006.

⁷ Robertson v Accident Compensation Corporation, above n 1.

[20] Thus, it is necessary for Mrs Robertson to establish on the balance of probabilities that the natural progression of her disease was materially affected by the failure to diagnose and treat her in 2002; and that the end-stage renal failure that occurred in 2004 was not wholly or substantially the result of Mrs Robertson’s underlying health condition.

[23] Having framed the issue in those terms, and reviewed the medical evidence, Goddard J made the following central finding:

[51] Thus it is clear from the evidence as a whole that it is not possible to establish to a sufficient degree of accuracy the extent to which a delay in treatment may have made any difference to the outcome for Mrs Robertson. She has therefore failed to establish, on the balance of probabilities, that any failure to diagnose her condition in 2002 caused her to suffer premature end-stage renal failure in 2004. Rather, the evidence is that her end-stage renal failure in 2004 was wholly or substantially caused by her underlying health condition.

[24] Her Honour went on to say:

[56] That is not to say cover will never be available for failure to diagnose an incurable disease. Cover may be available where there is sufficient medical evidence to establish, on the balance of probabilities, that timely diagnosis and treatment would have intervened to materially delay the inevitable outcome of an incurable disease by an ascertainable period of time. In every case it will be a question of evidence and degree.

[25] On that basis, Goddard J dismissed Mrs Roberson’s appeal.

Application for special leave

Principles

[26] In Knight v ACC, the principles relevant to consideration of granting leave under s 163 of the Act were summarised by Randerson J in the following terms:⁸

[18] ... counsel were unable to refer me to any case where the Court has

considered the principles applicable to a grant of leave under s 163 of the

2001 Act. However, counsel were in agreement that the principles applicable to an application for leave under s 67 Judicature Act 1908 should

apply equally to an application under s 163 of the 2001 Act. Those

principles may be summarised in this way: the appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. That must be treated with

this qualification, however, that s 163 is confined to questions of law only and the appeal is to be by way of case stated for the opinion of the Court of Appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.

[27] Those principles have been endorsed by the Court of Appeal in Cullen v ACC, an application for special leave to appeal.⁹ In that case, the Court of Appeal further noted that “the primary focus is on whether the question of law is worthy of consideration”.¹⁰ That Court also accepted that the prospects of success were a relevant consideration in granting leave.¹¹

Submissions

[28] In applying for special leave for leave to bring an (in effect fourth) appeal to the Court of Appeal, Mrs Robertson argues that Goddard J’s decision did not answer the question of law posed and that, therefore, the same question arises for determination on further appeal to the Court of Appeal. Mrs Robertson argues further that answering that question in these circumstances involves three further, or constituent, questions:

(a) whether Goddard J applied the correct test for cover under s 20 of the

Act; and

(b) whether the acceleration rule applies in ACC cases where a treatment injury accelerates an incurable underlying condition; and

(c) whether Goddard J failed to apply the exacerbated personal injury concept from Accident Compensation Corporation v Stanley to Mrs Robertson’s case.

Analysis

[29] I deal first with Mrs Robertson’s application as it involves questions (b) and

_{(c). Those questions rephrase the single question considered by Goddard J, which}

⁹ _{Cullen v ACC [2014] NZCA 94 at [5].}

¹⁰ At [5].

Mrs Robertson argues the Judge did not answer. I then consider leave as regards question (a), which says that, in approaching the issue before her as one of causation, Goddard J erred in law by applying an overly strict test for causation.

Cover and the “acceleration” rules

[30] At issue here, from Mrs Robertson’s point of view, is the application of the principles from what were known under the old workers’ compensation laws as “acceleration cases” to questions of coverage under the Act.

[31] By way of an explanation of those principles, I was referred to the following

commentary from a leading workers’ compensation text:¹²

[588] Compensation where progressive disease is accelerated: Where the incapacity induced by the accident would have been suffered in any event and is merely accelerated by the accident, the compensation payable is limited to the period by which the incapacity has been hastened, in short, to the incapacity which has resulted from the injury by accident. See Armstrong v New Zealand Shipping Co Ltd [1938] NZLR 167; [1938] 215 (where the incapacity of a worker suffering from heart disease was accelerated by accident): “Where a worker suffers a fatal accident, the combined effect of disease and injury, the law attributes death to the accident alone, but in non-fatal cases compensation can be allowed only for the period by which the claimant’s working life has been shortened”, per O’Regan J at p 170.

...

Where the accidental injury in conjunction with a progressive disease has resulted in present total incapacity, and the medical evidence is such that if the accidental injury had not occurred the worker might have continued at full work for an indefinite period and that it was impossible to state how long it would have been before the disease alone would have rendered the worker totally incapacitated, the Court is entitled to award compensation as for total incapacity: ...

In a non-fatal case where disablement is due to the combined effect of injury and disease and the medical evidence is that, had there been no accident, the plaintiff would have been disabled by the disease before the expiration of the period of liability for accident, the measure of compensation is the period by which the injury has hastened the disablement, and in this respect there is no difference between heart disease, cerebral haemorrhage, subarachnoid aneurysm, or any other disease. Accordingly, in such a case, though it is largely a matter of conjecture, the Court must estimate the period of disablement due to the injury alone: ...

[32] In arguing that those principles have been incorporated into the accident compensation legislation, Mrs Robertson points to the extended definition of personal injury found in s 20(2) of the Act: that is, those types of personal injury that are not described as personal injury “caused by an accident”. In essence, Mrs Robertson argues that it was not the purpose of the accident compensation legislation to “take away favourable rules which had improved the lot of injured claimants”, especially providing compensation for “the lost years”. The “lost years” are the years Mrs Robertson could have enjoyed without end-stage renal failure where, by correct diagnosis and earlier treatment, the onset of end-stage renal failure (itself inevitable) could have been delayed.

[33] A similar argument was made, and rejected, as regards the provisions of the Accident Rehabilitation and Compensation Insurance Act 1992 in the case McDonald v Accident Rehabilitation and Compensation Insurance Corporation.¹³

As described by Panckhurst J, that case involved the question:¹⁴

... whether incapacity arising from disease, the onset of which was brought about by an accident, is personal injury which enjoys cover under the Act. Ordinarily a disease is not of course covered, but is that general exclusion avoided where an accident triggered the onset of incapacitating symptoms of the disease? In such circumstances the accident has had a part to play but is that part sufficient to satisfy the test of causation under the Act.

[34] Mr McDonald, a fireman in 1992, fell on stairs responding to a fire call. He suffered a knee injury requiring surgery. Whilst Mr McDonald claimed he had had no problems with his knees prior to the accident, his surgeon was of the view that his fall was the “final straw, not the whole cause of the degeneration of his knee”. He was, nevertheless, initially granted cover. The Corporation withdrew cover in 1999, on the basis that the real cause was degeneration, not accident. On appeal reliance was placed on the principles from the old acceleration cases. Having reviewed a number of previous cases which addressed the relevance, or lack thereof, of cases from the old regime, Panckhurst J concluded:

[29] I agree that the relevant provisions in the Act supply a code. Principles drawn from the previous workers’ compensation scheme or from

¹³ McDonald v Accident Rehabilitation and Compensation Insurance Corporation [2002] NZAR

970.

the common law, in particular those relevant to foreseeability, are not applicable in relation to this legislation. That is not to say that from time to time cases decided in other contexts may not be of assistance. But it is one thing to seek guidance from the reasoning in other related contexts, but another to seek to directly apply the principles drawn from those sources.

[30] With regard to what Mr Hall called the acceleration rule I am satisfied it has no place in the context of the Act. Such rule presupposes on inquiry as to whether, absent the accident, the relevant disease symptoms would have remained dormant. An inquiry of that kind is foreign to s 10. It poses a single test: whether the disease is the whole or the substantial cause of the injury. If so, cover is unavailable regardless that the accident triggered (or accelerated) the progression of the disease.

[35] In considering the acceleration cases, Goddard J noted first that “a review of the acceleration cases suggests that acceleration alone cannot be a treatment injury for causation reasons”.¹⁵ Having considered McDonald and Stanley in particular, she then concluded, referring to Panckhurst J’s approach in McDonald:

[32] This approach has been upheld in numerous cases since.¹⁶ Applying it to Mrs Robertson’s situation, it inevitably means she is not entitled to cover, as if her disease has been “accelerated” by the treatment failure this would not suffice. No High Court decisions relevant to medical misadventure or decided in the context of treatment injury have cited the acceleration line of reasoning, undoubtedly because, as Panckhurst J held, the acceleration rule has no place in the context of the Act.¹⁷

[36] Yet, and as already noted, Goddard J concluded that cover might be available where there was sufficient medical evidence to establish that timely diagnosis and treatment would have intervened to materially delay the inevitable outcome of an incurable disease by an ascertainable period of time. To that extent, she can be seen as having answered the legal question put, and having done so in the affirmative.

[37] At the same time, however, Goddard J reached a clear view on the questions of delay in diagnosis and causation of the submitted “early onset”. Here she found Mrs Robertson had not established that the delay in diagnosis had caused her

_{end-stage renal failure “in 2004” (see [23] above).}

¹⁵ _{Robertson v Accident Compensation Corporation, above n 1, at [30].}

¹⁶ Cochrane v Accident Compensation Corporation [2005] NZAR 193 (HC) and Johnston v Accident Compensation Corporation [2010] NZHC 1726; [2010] NZAR 673.

¹⁷ However, there are some District Court cases – see Becker v Accident Compensation Corporation DC Wellington 42/2006, 22 February 2006; and Williams v Accident Compensation Corporation DC Auckland 273/08, 10 November 2008, albeit briefly.

[38] Thus, I do not think it can be said Goddard J failed to answer the question appealed.

Exacerbation

[39] I do not consider there has been any error of law because Goddard J did not follow the approach of Heath J in ACC v Stanley, where he recognised that “cover will exist where the cause of the injury arises from a combination of an underlying health condition and a delay in treatment; so long as the underlying health condition is not the sole or substantial cause”.¹⁸ In Stanley, the Judge’s conclusion was based not only on the early incidence of the disease or condition, but also on the fact that if timely treatment had been provided the disease or condition may not have progressed to the stage which was reached because of failure to treat. That is not a

finding that “acceleration” will itself be personal injury.

Causation

[40] In my view, in reaching the view she did, Goddard J did not take an overly strict or otherwise legally incorrect approach to causation. For Mrs Robertson, counsel relies on the decision of the Court of Appeal in Accident Compensation Corporation v Ambros. There the Court of Appeal stated that:¹⁹

If medical science is prepared to say there is a possible connection, a Judge may, after examining all the evidence, decide that causation is probable.

[41] But, and as counsel for the Corporation submits, I do not think that statement can be read as a mandatory direction that in all cases where medical science suggests that a possibility of causation exists, the Court must find that causation has been proved. Rather, the question of causation remains one for the Court, and the Court’s assessment requires consideration of the whole of the evidence.

[42] In my view, Goddard J’s conclusion on causation was one that was open to

_{her as a matter of fact and law.}

¹⁸ _{Accident Compensation Corporation v Stanley, above n 3, at [57].}

¹⁹ Accident Compensation Corporation v Ambros [2007] NZCA 304 at [68].

Result

[43] I therefore decline Mrs Robertson’s application for leave to appeal to the

Court of Appeal.

[44] It is not clear to me whether any issue of costs arises. If it does, and the matter cannot be agreed, counsel may file focused submissions no later than three

_{weeks from the date of this judgment.}

_{Clifford J}

Solicitors:

John Miller Law, Wellington for Applicant

Claro, Wellington for Respondent