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Accident Compensation Cases

Williams v Accident Compensation Corporation (DC, 14/03/11)

Judgment Text

RESERVED JUDGEMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
This is an appeal decision which Counsel for the parties have requested the Court to determine and to issue, it being the third such decision which this Court will have given in relation to decisions of the respondent and reviewers relating to the appellant's entitlement to cover for personal injury by medical misadventure, being medical error, or medical mishap. 
[2]
This appeal arises from a review decision dated 20 February 2007, where the Reviewer, Ms K Stringleman, determined that the respondent's primary decision of 6 October 1997, whereby it determined that the appellant did not qualify for cover for personal injury by medical misadventure, being medical mishap. 
[3]
It is the assertion by Counsel for the Appellant that the respondent, in making the decision it did, acted outside its power, as it is contended that the decision extended to purportedly reconsider the extant cover decision which it had issued on 26 November 1996 determining that the appellant was entitled to cover for personal injury by medical misadventure, being medical error. 
[4]
Essentially, Counsel for the Appellant is asserting that despite another review decision dated 31 July 1997 which quashed that primary decision dated 26 November 1996, and which determined that Dr Gates, who had been determined by that primary decision as having been guilty of medical error, to be not guilty of any medical error or of any cause of the appellant's subsequent medical condition, nevertheless, that review decision had not affected the appellant's cover for medical error, as the decision of the respondent of 6 October 1997 was a decision made ultra vires, in that it was not a decision which could be made within the provisions of Section 67A of the 1992 Act, as the earlier decision had not been a decision which could be said to have been made in error or by mistake. 
[5]
The wording of the review decision of 31 July 1997 leave a lot to be desired. The decision makes it clear that Dr Gates had not been guilty of medical error, and it went on to state: “This means that the Corporation's letter dated 26 November 1996 to Dr Gates is revoked”
[6]
The review decision then went on to observe that medical mishap had not been addressed by the Corporation, and therefore the Reviewer went on to state: 
“I return the file to it for it to do so and to issue a new decision letter on whether there is cover for medical mishap. Cover and entitlements are not stopped by this decision overturning the letter Dr Gates — cover and entitlements can continue under the separate letter sent to Maleka's parents at that time pending the new decision on medical mishap, the Corporation will make an address to Maleka's parents. 
I am well aware that in reaching my decision in Dr Gates' favour on the issue of medical negligence, if medical mishap is not found Maleka will lose cover and entitlements under the Act which she has been granted. 
I return the file to the Corporation to make a primary decision on the issue of medical mishap. If it is unfavourable cover will have to be withdrawn and entitlements stopped. ”
[7]
After the Corporation had followed up that Reviewer's direction, it determined there was no basis for the granting of cover for medical mishap, and therefore in its decision of 6 October 1997, it stated: 
“Your claim for cover under medical misadventure has been reviewed by the Medical Misadventure Advisory Committee and advice has been given to the Corporation. The Corporation has considered the findings of the Advisory Committee and your claim for cover has been declined. ”
[8]
It is Counsel for the Appellant's assertion that despite the review decision of 31 July 1997, determining that there was no medical error on the part of Dr Gates, that decision did not quash cover and that therefore cover to the appellant still pertained and it was not open to the respondent to amend that decision, as there was no basis for doing so pursuant to the powers contained in Section 67A of the Act. 
[9]
Mr Barnett, Counsel for the Respondent, submitted that the decision of 6 October 1997 was not a revision of a decision made in error, rather it was a decision made at the direction of the Reviewer to investigate and determine whether there had been medical mishap. 
[10]
Counsel submitted that the question of medical error had already been determined by review and was thus res judicata, and that the only matter capable of further primary decision was the question of medical mishap. 
[11]
I agree with Mr Barnett's submissions, and that despite the unfortunate wording by the Reviewer in the decision of 31 July 1997, it is clear that cover for medical error had been quashed and that entitlements for the appellant would be terminated unless it could be established that there had been medical mishap. 
[12]
It has already been determined by earlier decisions that the only decision which the respondent made on 6 October 1997 was a decision that there could be no cover for medical mishap, and thus the combined effect of the review decision and the respondent's primary decision was to preclude cover for medical misadventure generally. At best, for the appellant, it could be said that the decision relating to quashing of cover for medical error did not take effect until the respondent had completed its duties to consider medical mishap and make a decision thereon. 
[13]
Accordingly, I find that the Corporation's decision of 6 October 1997 was a decision made within its power and was not a decision in any way seeking to amend its earlier primary decision of 26 November 1996, that decision already having been overturned by the review decision of 31 July 1997. 
[14]
From the foregoing, I find that there is no basis either in fact or in law, for a determination that somehow this appellant still retained cover for personal injury consequent upon medical error from and after 6 October 1997. Accordingly, this appeal is dismissed. 

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