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Accident Compensation Cases

Accident Compensation Corporation v Derrick (DC, 30/03/11)

Judgment Text

Judge M J Beattie
The applicant has made an application for leave to appeal to the High Court from a decision of His Honour Judge P F Barber, given on 13 October 2010, and being Decision No. 181/2010. 
In that appeal the issue was whether Mr Derrick was entitled to cover for a treatment injury as a consequence of the failure of his General Practitioner to diagnose a melanoma on his right foot. 
The essential assertion made by the respondent, Mr Derrick, in that appeal was that his medical condition on his right foot should have been identified as a potentially serious condition by the GP at a much earlier time than in fact it was, and that specialist advice and tests should have been sought long before they were in fact sought. 
For the purposes of his decision, Judge Barber was provided with a chronology of the medical treatment and activity which the GP undertook from the date of his first consultation in September 2007, until the respondent was referred to Dr Singh, Dermatologist, on 19 May 2008, and when consequent upon a biopsy carried out by Dr Singh, the respondent was identified with a malignant melanoma and was thereupon immediately referred to the appropriate surgical unit at Hutt Hospital for treatment. 
It is the case that the respondent's medical condition was such that he initially required right forefoot amputation and then ultimately a below-knee amputation, and which surgery was carried out in July 2008. 
In his decision, Judge Barber noted the specialist opinion evidence which had been introduced, and which His Honour found established that there was probably no visible evidence of the infected corn being a melanoma prior to its final diagnosis in May 2008. His Honour considered that that was not the end of the matter, as he considered that Dr X, the respondent's GP, “ … had held off too long i.e. for about eight months in adhering to his own diagnosis of pustular psoriasis, and he should have organised tests and specialist advice long before he did. It seems to me to be very likely that if he had, then the appellant might not have needed the amputations from his right foot.” 
His Honour then put that failure to arrange specialist tests against the fact that there was not likely to have been identifiable evidence of a melanoma at an earlier point, and in paragraph [65] of his Judgment he stated as follows: 
“I am conscious that there has been rather detailed medical evidence in this case from a number of medical specialists who, generally speaking, seem to be of the view that no medical practitioner could have diagnosed the infected corn of the appellant to be a melanoma against the consultation facts which I have set out above. I do not wish to be blaming a dedicated general medical practitioner, but it seems to me that Dr X should have sought specialist diagnosis and treatment long before he did. ”
Mr Corkill QC, Counsel for the Applicant, submits that the decision of Judge Barber was a decision made against the weight of evidence that identified that the particular melanoma condition that the respondent had was difficult to diagnose, and that a reasonable GP would not have diagnosed it at an earlier stage. Counsel submitted that the Judge's decision was therefore a conclusion reached which was not grounded in evidence and that no reason was given for not doing so. 
Counsel submitted that this was an example of the type of question of law where it is asserted that there was no evidence to support the determination made, and Counsel submits that the conclusion reached by His Honour was one on which there was no evidence to support that determination. 
Mr J Miller, Counsel for the Respondent, submitted that the real nub of the case was that the GP failed to refer the respondent on for tests when the condition failed to heal, and he submitted that the Judge's decision was based on the delay in referral and that this was a finding on the facts. 
Mr Corkill's response to this was that the Court was required to provide an analysis of the reasons given by the experts and an articulation of why the expert opinion was not accepted if the Court was going to take that course. He stated that this did not occur in the present decision, and on that basis there had not been a proper approach to the evaluation of expert opinions, and that the decision ultimately reached was so unsupportable or untenable as to amount to an error of law. 
The only question of law which has been asserted as being in issue in this case, is an assertion that Judge Barber has come to a decision which is totally unsupportable by the facts, and which facts are not in dispute. 
I find that such an assertion is not the correct interpretation of His Honour's decision. As noted above, His Honour identified that the evidence which was presented made it clear that there was no visible evidence of the respondent's condition being a melanoma prior to its actual diagnosis by a specialist. The Judge has made his decision with that as a clear finding. However, his Judgment then proceeds on from that, as I have set out above, to identify that in his opinion the GP should have arranged for tests and specialist advice long before he did, and it is that which he found was contrary to treatment within the meaning of Section 33, in that it was a failure to provide treatment in a timely manner in terms of Section 33(1)(d). 
The Judge did not make any finding or ruling that the GP, if he had acted properly, ought to have diagnosed the melanoma earlier. It is only if that were to be his finding in the Judgment that I would rule that such a finding was likely to be contrary to the specialist evidence that had been presented and as such, Mr Corkill's submission might have had some traction. 
In the circumstances, I find that no question of law arises which is suitable or capable of consideration by the High Court. The findings made by His Honour Judge Barber were clearly findings of fact upon which he determined that a treatment injury had occurred. 
Accordingly, leave to appeal the decision to the High Court is refused. 

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