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Accident Compensation Cases

Strickland v Accident Compensation Corporation (DC, 03/05/12)

Judgment Text

DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge M J Beattie
[1]
The applicant seeks leave to appeal to the High Court from a decision of His Honour Judge D A Ongley, delivered on 20 April 2009, under Decision No.57/09. 
[2]
The issue in the appeal before His Honour was the respondent's decision of 12 August 2005, whereby it declined to grant the applicant's claim for cover for personal injury by medical misadventure on the grounds that the medical treatment in question had not caused a personal injury. 
[3]
The treatment in issue was the syringing of the applicant's left ear by the practice nurse of her GP on 28 October 2004. 
[4]
It is the case that at the conclusion of the syringing the applicant was prescribed Sofradex drops to take and later that day these were applied to her ear subsequent to which her ear began to feel worse than it had been before the syringing, and according to the applicant, it became swollen, weeping clear fluid and with blisters around the ear lobe. 
[5]
In May 2005 the applicant lodged a claim for cover with the respondent. 
[6]
Prior to making its decision the respondent sought and obtained medical reports from two Otolaryngologists, namely a Mr Currie and a Mr Blake, and it was consequent upon their reports that the respondent then issued its decision declining to grant cover. 
[7]
It is the case that the review decision confirmed the respondent's decision of declinature, that review decision being made on 13 February 2006. 
[8]
In his Judgment, Judge Ongley noted that the Reviewer had found that the weight of the medical evidence established that there was no physical injury. Further, that the Reviewer could find no causal link between the treatment that the applicant had received and the inflammation of the external ear canal. 
[9]
In his Judgment, Judge Ongley noted the medical evidence which had been presented, including that of yet another Otolaryngologist, Mr P Mason, and after considering all that evidence, His Honour concluded his decision by stating at para [28] 
“[28]
In this appeal, the Court is left with the same conclusions as the Reviewer. There is no evidence for the Court to reach a different decision. A pivotal possibility is that the appellant had an incipient problem that developed at a point in time that gave the appearance of a condition precipitated by treatment with Sofradex and Locoid. There is no satisfactory medical explanation of a process of causation associated with treatment. It is still possible that the appellant suffered a rare and severe condition caused by treatment, but the evidence for that is only speculative. ”
[10]
For the purposes of this application the Court has received written submissions in support of the application from the applicant's Advocate, Mr J Grove, who represented the applicant at the appeal, and the Court has also received submissions in opposition to the application from Mr J E Castle, Counsel for the Respondent. 
[11]
In his submissions Mr Grove has contended that Judge Ongley's decision is one which involves an error of law, in that it is Mr Grove's contention that the principles enunciated in the decision of Edwards v Bairstow (1995) 3 All ER 48 are applicable. It is his contention that an erroneous statement was made by one of the specialists that the applicant had experienced a one-year history of intermittent pruritis of the left ear prior to the treatment event, when the applicant herself and her GP stated that there was no evidence of any pre-dating intermittent pruritis of the left ear prior to October 2004 when the applicant sought treatment for that condition. 
[12]
It was Mr Grove's submission that this erroneous statement by the Ophthalmology Registrar distorted the conclusions of the later specialists who were engaged to give advice on the matter of the applicant's medical condition. 
[13]
In his submissions in opposition, Mr Castle referred to the fact that the report of Mr Blake, one of the Ophthalmologists, whose advice Judge Ongley accepted, was a report given with knowledge and comment on the contention by the applicant and her GP, that there was no previous evidence of any medical condition, and his report in that regard stated that whether or not the applicant had any previous medical condition was largely irrelevant to his opinion and conclusion. 
[14]
Counsel referred to the fact that Judge Ongley noted the situation in his decision and in that regard referred to the later report of Mr Blake, and which is contained in paragraphs [26] and [27] of his decision, where he stated as follows: 
“[26]
I note here that Mr Blake, in a later opinion, set out reasons to consider that there had been a history of otitis externa that may not have been diagnosed, but which was consistent with the recorded accumulation of was and dry skin. He went on to propose that the symptoms and recorded physical findings are consistent with an evolving and spreading cellulitis, rather than an allergy. He considered that the appellant's ongoing symptoms cannot possibly be related to the ear syringing or the use of the Sofradex drops, even if there was an element of allergy to the drops. 
[27]
Mr Blake discussed that possibility with reference to information in the documentation of the appellant's history and treatment. It is an alternative hypothesis that does not have to be shown by the respondent to be correct. The fundamental question is whether there is sufficient evidence to support the positive assertions of medical misadventure. ”
[15]
Whilst the issue raised by Mr Grove at the appeal were considered and commented on by Judge Ongley, it is the case that his decision was not in any way based on, or influenced by, whether or not the applicant had experienced problems with her left ear prior to the treatment event in issue. 
[16]
As His Honour noted, the issue was whether the applicant was entitled to cover for personal injury sustained by medical misadventure, and he identified from a statutory perspective that that required evidence establishing that the injury sought to be covered had been caused by medical misadventure, and he noted that required evidence establishing either an act of medical error or the fact of medical mishap. As noted by Judge Ongley in his decision, medical error is the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. He noted that such a failure was not now alleged in relation to the syringing carried out by the practice nurse, and this aspect was not being pursued by the applicant. 
[17]
He then referred to the alternative situation of medical mishap, where it is required that an adverse consequence of treatment be established and that adverse consequence is rare in that it would not occur in more than one percent of cases in which that treatment was given. 
[18]
Judge Ongley noted that the claim was only being brought in relation to the seeking of cover for medical mishap, and in that regard he noted that the evidence was that any allergic reaction to the Sofradex drops that were administered by the practice nurse, could not have produced the applicant's symptoms lasting up to four years, as the evidence was that any allergic reaction would improve within seven to fourteen days of the cessation of treatment from those drops, and that the evidence was clear that Sofradex could not possibly have led to a chronic ear condition. 
[19]
It was on that basis that Judge Ongley stated that there was a lack of specialist or medical evidence to support the claim for cover for medical misadventure. 
[20]
In his submissions in support of the application for leave, Mr Grove is in fact stating that he seeks a re-hearing in the High Court of the question of the applicant's entitlement to cover, his final words being: “On this basis we respectfully request that the application for re-hearing in the High Court be granted.” 
[21]
An appeal from the District Court decision under the Accident Compensation Act does not give rise to a re-hearing, and an appeal can only be to consider whether there has been a question of law which has been incorrectly applied by the District Court Judge. 
[22]
In the present case, I am satisfied that Judge Ongley has not incorrectly applied any question of law and his decision has been based solely on the evidence that the applicant could not establish the fact of medical mishap having occurred at the time she received treatment from the practice nurse during the course of her syringing of that ear, and the prescription of Sofradex drops. 
[23]
Accordingly, therefore, this application for leave to appeal to the High Court is declined. 

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