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Accident Compensation Cases

Robertson v Accident Compensation Corporation (DC, 20/03/13)

Judgment Text

Roderick Joyce QC Judge
This was an application for leave to appeal to the High Court on a question of law identified by the applicant as being: 
“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. ”
On 9 June 2007 the Corporation had declined to grant cover to Mrs Robertson for a treatment injury identified as: 
“Delay in diagnosis of LgA neuropathy resulting on kidney damage and progression of renal disease. ”
That decision had been quashed on review in terms obliging the Corporation to grant cover to Mrs Robertson for a treatment injury. 
On the Corporation's appeal before Judge Beattie His Honour recorded that two issues required determination: 
First whether or not as a matter of fact there was a delay in diagnosis which amounted to a failure to diagnose the respondent's medical condition; and if so 
Whether such delay as might be established caused a treatment injury within the meaning of the Act when it was accepted that Mrs Robertson's medical condition was not born of a treatment injury but constituted an existing underlying condition. 
His Honour noted that the claimed treatment injury took the form of the more aggressive progression of Mrs Robertson's chronic kidney disease, it being contended that its progression could have been delayed for a significant period if there had been an earlier diagnosis and instigation then of appropriate treatment. 
His Honour noted that Mrs Robertson's medical condition was one that was incurable, one that was inevitably going to reach the stage of renal failure, but continued: 
“ … The point is if that end state of renal failure could have been put off for some limited period of time by earlier instigation of treatment, has the failure to do so given rise to a treatment injury? ”
First of all, and contrary to the case originally made for the Corporation, Judge Beattie held (and the Corporation does not now seek to contest) that there had been a failure to provide treatment or, at least, to provide that in a timely manner. 
On the second issue of whether such delay caused a treatment injury the Judge found as follows: 
The evidence from the specialist renal physicians is to the same effect, namely that whilst earlier treatment may have delayed the onset of end stage renal failure, it would not have prevented it, and indeed there is a real question mark as to whether end stage renal failure would have been delayed; but even if it was delayed the evidence is clear that the outcome of end stage renal failure was the inevitable end result of the medical condition of LgA neuropathy, 
In terms of the relevant statutory provision, namely s 32(2)(a), I find as a fact that the medical condition suffered by the respondent was that of LgA neuropathy 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. 
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, that is a treatment injury, but rather there is simply the possible acceleration of the inevitable. 
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 of LgA neuropathy, and as such, her medical condition is excluded from being a treatment injury by reason ofs 32(2)(a). 
Accordingly, therefore, I find that even though, on the balance of probabilities, there was treatment within the meaning of the Act. In the failure of an earlier diagnosis, it is the case that that treatment has not caused a treatment injury within the meaning of s 32 of the Act. 
In the present case I find that the medical advice to the effect that the inevitable outcome of the respondent's medical condition would be end stage renal failure, and that no treatment could prevent or resolve that condition, puts this case in a different category from other cases where delay in diagnosis was found to have caused a more severe injury than would have been the case if there had been the opportunity of earlier treatment. 
In the present case earlier treatment would not have affected the inevitable consequence of the progress of the disease to end stage renal failure. ”
(Emphasis added) 
It was in those terms that the Judge quashed the review decision and reinstated the Corporation's determination of 9 June 2007 to decline cover. 
Case for applicant 
The submissions in support of the application began with a reference to matters of fact which appear to have been common ground, namely that: 
Mrs Robertson was a mother of five who at the age of 30 suffered bilateral renal failure and now required daily dialysis for several hours. 
The need for “permanent” daily dialysis might have been delayed given earlier diagnosis and consequential treatment but that dialysis regime would inevitably, after the passage of more time, have been required to maintain life. 
That regime meant that restrictions were inevitably placed on Mrs Robertson's ability to be an effective and involved mother of her five children who at the time her kidneys failed were aged between 13 and 3. 
Recognising the need to identify an error of law pertinent to the appeal outcome that was capable of bona fide and serious argument, counsel for the applicant seeks to make a case: 
Accepting, first of all, the fact that the damage to the kidneys was caused by a gradual process, disease or infection would result in exclusion from recognition of personal injury unless what had happened fell within the exceptions found at s 20(2) of the Act, one of which is: 
Personal injury caused by a gradual process, disease, or infection that is treatment1
| X |Footnote: 1
“Treatment” also includes a diagnosis of a person's medical condition — see s 33(1)(b)). 
injury suffered by the person. 
Calling Allenby2
| X |Footnote: 2
Allenby v H [2012] NZSC 33Has Litigation History which is not known to be negative[Blue]  at [66] 
in aid, particularly the observation in the Supreme Court that: 
“Where, however, the medical misadventure involves misdiagnosis of a disease, perhaps without any form of treatment being given, it is not a natural use of language to speak of the progression of the disease (say the enlargement of a cancerous tumour and the spreading of the cancer to another part of the body) as a personal injury. Yet it is common ground that the affected person has cover under section 20 if this is suffered as a consequence of negligent treatment or negligent failure to administer treatment. ”
(Allenby was a decision under earlier legislation.) 
Identifying the legal issue in contention as being whether the progression of the kidney disease following the delay in diagnosis requires recognition as a physical injury that attracts cover. 
Seeking to confound the supposed roadblock created by s 32(2) of the 2001 Act which says that: 
Treatment injury does not include the following kinds of personal injury: 
Personal injury that is wholly or substantially caused by a person's underlying health condition. 
Accepting that Judge Beattie had focused both on this provision and upon the fact of the inevitability of ultimate outcome, but nevertheless arguing that: 
“ … this puts the issue too simply, and creates a false dichotomy — it develops a scheme by which those who suffer an illness which cannot be cured will never be able to receive cover for a delay in diagnosis or treatment. 
It is submitted that such a dichotomy is contrary to the spirit of the legislation, which specifically identifies fair compensation for loss from injury as a key purpose (section (3)(a)). Refusing cover for such individuals would further create a gap in cover whereby those who had suffered negligent treatment could not claim cover from the ACC, and would be required to have recourse to civil litigation. ”
Submitting that cases of delay in treatment and diagnosis are inherently different from those that involved a positive act - such as one brought about by a conventional accident - for the injury here was caused by a failure to act. 
Contending that in the treatment injury context the s 25 definition of “accident” is naught to the point; in fact subs (2)(a)(i) of s 25 excludes treatment given in New Zealand by or at the direction of a registered health professional. 
Re-enlisting Allenby in terms of this3
| X |Footnote: 3
At [62] 
from that case: 
“ … that in itself may suggest that they are concerned with things which are not ordinarily to be classed as physical injuries. That view is reinforced by the statement in subsection (3) of section 33 that medical error can arise, not just in the giving of treatment, but when the registered health professional is ‘deciding whether or not to give treatment’ (and so extending cover to situations where no treatment is actually given). 
… it is worth repeating however that the use of the term ‘personal injury’ in paragraph (f), and indeed throughout subsection (2), in connection with events that would naturally be described as illnesses rather than injuries, shows that, despite section 26(1)(b), the term is being given an extended meaning4
| X |Footnote: 4
Ibid at [76] 
Consequentially submitting that there is a place for specific recognition of acceleration of an underlying condition in treatment injury law when there has been a delay in diagnosis, and thus provision of treatment, 
Case for Corporation 
The case for the Corporation was that Mrs Robinson's application was misconceived. Its counsel first of all submitted that: 
Cases involving a late diagnosis did not frequently arise in this jurisdiction and the matter in dispute was in the realm of factual decisions the Court is frequently required to make in the context of whether or not a claimant suffered “personal injury” or a condition “wholly or substantially caused by disease”
Given that the end stage renal failure was wholly or substantially caused by Mrs Robertson's underlying health condition it could not be a “treatment injury” by reason of the exclusion in s 32(2)(a). 
As counsel put it: 
“It is a question of fact and degree in any given case whether the claimant's underlying health condition was wholly or substantially the cause of the injury for which cover is sought. Expressed another way, the question is whether the necessary degree of causal nexus is established to overcome the exclusion. ”
In other words, counsel for the respondent would identify the construction issues sought to be raised by the applicant as being, in reality, matters of fact rather than law. 
Counsel then raised these points: 
There will be cases where a claimant suffers from an underlying health condition where a delay in treatment, and consequential progression of the disease, will give rise to cover for “treatment”
An example would be where the underlying health condition/disease was curable but a complete failure to treat it, or untimely delay in treatment, was such that the condition was rendered incurable; but here 
The judge's decision on the evidence was that it was simply the case that the underlying health condition was wholly or substantially the cause; and in any event: 
Section 20(2)(f) - in referring to personal injury caused by a gradual process, disease or infection that is “treatment injury” - necessarily imports the definition of “treatment injury” and that excluded one wholly or substantially caused by an underlying health condition. 
Turning then to the applicant's reliance on Allenby it was accepted or submitted that: 
The progression of a disease, although not commonly understood as an injury, might in the context of the Act and in particular the context of treatment be a physical injury; but 
Nothing more than that could arguably be taken from the passages cited because the Supreme Court had been addressing the “medical misadventure” provisions under the 2001 Act since replaced by the “treatment injury” provisions which exclude from the meaning of “treatment injury” a condition caused wholly or substantially by an underlying health condition; furthermore 
The Supreme Court had not been addressing a case anything like this, namely one concerned the progression of a disease, so its attention was not so directed — and of course there could be circumstances where, for example, the spread of a disease causing an enlarged tumour or spread of cancer would be covered; that when the circumstances were that the spread was avoidable by timely treatment. 
As to the submission that the Judge's decision gave rise to a “false dichotomy”, namely that those with incurable disease will not have cover whereas those with a curable disease may have cover, that, the respondent would argue, was not a dichotomy state of affairs at all. 
Instead, said the respondent, it was plain that one of the cornerstones of the legislation was that injury (which in the context of treatment might include disease) caused by accident or treatment was covered, but injury not so caused was bereft of cover. 
These could be borderline cases, but that borderline had been delineated by the exclusion of cover for injury caused “wholly or substantially” by gradual process, disease or infection. 
Applicant's response 
The applicant would demur at the argument of the respondent that the question sought to be posed, in this case, was actually one of fact. 
Mrs Robertson's case was that the uncontested delay in treatment had plainly led to an otherwise avoidable acceleration of the deterioration of her condition, and it was for that that cover was sought. 
The question of law concerned whether there was scope in the legislation such as required or allowed it to operate to cover such a situation — in other words there was at hand a question of statutory interpretation. 
The avoidable acceleration of the arrival of a more serious stage in the progress of an ultimately incurable condition ought to attract cover for the very same reasons that progression of a disease (such as cancer) to an incurable state would, as the Corporation had accepted, do so. 
It was acknowledged that Allenby spoke of provisions in the Act that have since been replaced but Allenby was arguably still of relevance because: 
First, the passages referred to concerned provisions of the statute which had largely been retained in the treatment injury provisions; and 
More importantly, their over-arching purpose was to widen the scope of what had been the medical misadventure cover, that being plain from a reading of the relevant passages in Hansard; so that 
The Supreme Court's observations could well be said to have even more relevance to the current in Mrs Robertson's case treatment injury provisions than was the case with those for medical misadventure; and finally 
The respondent's submissions did not effectively address the issue of whether there was a place for “acceleration” in treatment injury law, that going to the heart of the matter. 
I begin by saying that my recent experience has included hearing another somewhat similar case (one relating to melanoma) where it became clear that there was a real level of awkwardness in applying the Act to the apparent facts. 
That was a case where, had the diagnosis been timely, it appeared that an inevitable in any event fatal outcome could well have been significantly delayed by immediate treatment intervention. 
That case eventually settled and the Court was not privy to the settlement terms. 
The reason why I refer to it is that, although such cases may be relatively rare, when they do arise it is often the case that they involve devastating consequences. They are unlikely merely to be further examples of questions commonly met in the context of “wholly or substantially” and associated arguments. 
They will likely be cases of real significance; cases the determination of which is important to the community at large as well as, and all too directly, to the particular claimant or their family. 
In my view, looking at what have been identified as the potential arguments each way and at the issues to which they relate, this Court (as well as the parties themselves) would be greatly assisted by superior court guidance in an area which, in my experience at least, will expose issues that are fraught in both legal and human terms. And that an issue may have amongst its elements matters factual, as well as legal, does not put it out of Court as a question of law. 
For these brief, but in my judgment significant, reasons leave to appeal to the High Court on the question posed in [1] above of this judgment is granted. 

“Treatment” also includes a diagnosis of a person's medical condition — see s 33(1)(b)). 
Allenby v H [2012] NZSC 33Has Litigation History which is not known to be negative[Blue]  at [66] 
At [62] 
Ibid at [76] 

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