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Accident Compensation Cases

Corcoron v Accident Compensation Corporation (DC, 26/04/04)

Judgment Text

DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge M J Beattie
[1]
The Appellant seeks leave to appeal to the High Court against the decision of His Honour Judge J Cadenhead delivered on 30 September 2003 under decision number 239/03. The Respondent opposes the application on the basis that the Appellant has not raised a question of law to support her application. 
[2]
The issue sought to be appealed is the Respondent's decision dated 1 October 2002 declining the Appellant's claim for cover for personal injury caused by medical misadventure, being medical error. That decision was confirmed on Review. 
[3]
The relevant background facts are set out in the opening paragraphs of His Honour's judgement and briefly it is the case that the Appellant lodged a claim for cover in August 2001 alleging personal injury by medical misadventure in relation to bladder complications following a hysterectomy and an allegedly unnecessary Stamey repair carried out on 5 October 1992. The medical error is alleged to have been committed by the treating surgeon, Dr GK Parry, obstetrician and gynaecologist. 
[4]
The court has received submissions in support of the application from Ms CL Cook, counsel for the Appellant, in which she submitted that the error of law of His Honour of Judge Cadenhead was in the following terms: 
“(a)
The learned Judge misdirected himself in the finding that the medical evidence was of assistance for the following reasons: 
(i)
The Corporation, through their representative, accepted, at a review hearing that, if it had been found that a Stamey repair operation was not needed, that it would amount to medical error. 
(ii)
That the medical evidence was based on a factual assumption that the Appellant had suffered from bladder problems prior to the operation being carried out. ”
[5]
Counsel further submitted that His Honour erred in finding the evidence from Dr Parry should be preferred over the direct evidence of the Appellant and her partner. Counsel submitted that the totality of the evidence was such that the only reasonable conclusion was that the Appellant was not suffering from incontinence prior to the operation and therefore there was arguably an issue of error of law to be decided. 
[6]
Ms Becroft, counsel for the Respondent, submitted that the issue raised by counsel for Appellant is clearly a question of fact cloaked as a question of law. Counsel submitted that His Honour made a determination on the available medical evidence. Counsel submitted that the issue at appeal was a factual one and that His Honour made a determination based on the facts as he found them. 
[7]
In his judgement the learned Judge traverses the medical evidence as contained in the various medical reports and hospital records, including the reports from the independent specialists instructed by the Respondent's medical misadventure advisory unit. His Honour then identified that the test was whether the health professional concerned had failed to observe a standard of care and skill reasonably to be expected in the circumstances. In so doing the learned Judge has correctly identified the statutory test. 
[8]
Consequent upon that His Honour considered both the issue of causation and medical error. 
[9]
With regard to the former His Honour stated in paragraph 98 that: 
“I have read the transcript of the review proceedings and considered the reports of the general practitioners, but the Appellant has not persuaded me to a balance of probability that the views of Dr Mackintosh and Dr Liddell should not be followed. I do not think that the appellant has proved that her present symptoms were caused by the relevant operation performed by Mr Parry. ”
[10]
In that paragraph of his decision His Honour has stated that there is no causative link between the Appellant's present symptoms and any act or omission of Dr Parry, and therefore His Honour found that there was no injury suffered as a consequence of any act or omission. 
[11]
His Honour then went on to consider the evidence as it related to the actions of Dr Parry and in paragraph 105 he stated: 
“On the specialist medical evidence presented to me I do not think that the Appellant can show that the procedures carried out by Mr Parry were inappropriate at that time or that these procedures were carried out fell below the proper standard of care. ”
[12]
Those two findings of His Honour Judge Cadenhead were findings of fact made by him from the evidence available and in so finding His Honour was not called upon to make any rulings of law. 
[13]
There is no suggestion by counsel for the Appellant that His Honour misinterpreted the statutory test as contained in section 36 of the Act and I find that the errors of law contended for by counsel are simply a contention that His Honour ought to have made different findings of fact based on the evidence that he received. 
[14]
In the circumstances I find that there is no question of law in issue in this appeal, the issue being wholly one of fact and His Honour made certain findings of fact, as he was entitled to do, on the evidence before him. 
[15]
Section 165 of the Act requires that for leave to be granted to appeal to the High Court it must be established that the decision of the District Court was wrong in law. Finding as I have that there is no error of law in His Honour's judgement leave to appeal to the High Court is hereby refused. 

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