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Accident Compensation Cases

Manning v Accident Compensation Corporation (DC, 04/04/14)

Judgment Text

Judge L G Powell
This was an application for leave to appeal a judgment of His Honour Judge Beattie delivered on 31 August 2012. 
Judgment Appealed Against 
In the appeal before him Judge Beattie was required to determine whether the applicant had suffered a treatment injury in the immediate aftermath of his birth. There was no dispute that the applicant suffers from periventricular leukomalacia (“PVL”) a pathological lesion of the brain which has led to cerebral palsy and severe damage to the applicant's motor skills. The issue in the appeal was whether the PVL arose in utero, or whether the PVL was caused or made significantly worse by any failure to treat the applicant's hypoglycaemia (abnormally diminished concentration of glucose in the blood) which was caused by the applicant's mother's type 1 diabetes, and which was observed when the applicant was born but not brought under control for some 11 hours following his birth. 
The key parts of the judgment are as follows: 
In this case both parties agree that the question of whether [the applicant] has suffered a treatment injury within the meaning of the Act, is dependent on whether or not it was any treatment or lack of same during the first hours after his birth that culminated into the onset of PVL, with that issue of treatment or insufficiency of same being associated with [the applicant's] post-natal hypoglycaemia. 
If it is accepted that [the applicant's] blood glucose levels remained lower than optimal for a significant period, the question then arises whether that situation caused or contributed to the cause of [the applicant's] subsequent brain injury of PVL, which is described as a pathological lesion of the brain. 
From the [respondent's] perspective, it is contended that [the applicant's] injury was caused by his pre-birth exposure to his mother's diabetes, and in that regard it seems to be accepted that the medical condition of PVL, if arising during pregnancy, is likely to have been caused between 20 and 34 weeks of pregnancy, and with such cause being the mother's diabetes. 
From the comments made by the specialists, in particular Dr Richardson for the [respondent] and Dr Broadbent for [the applicant], it seems to be accepted that [the applicant] was born with the injury condition of PVL, and it is the opinion of Dr Richardson that [the applicant's] post-natal hypoglycaemia was not the cause of his PVL. 
Dr Broadbent, whilst accepting that is was likely that [the applicant] did have PVL whilst in-utero, by reason of exposure to his mother's diabetes, he nevertheless submitted that the subsequent poor glocuse control of [the applicant's] hypoglycaemia following birth, became a substantial cause of his subsequent brain injury condition which was identified fully some eight months after birth. 
Having considered the various specialist opinions on this matter, I have come to the conclusion that there is simply no evidence, or at least insufficient evidence, to identify that for the hours following [the applicant's] birth, during which his blood glucose level was low, that situation of treatment within the meaning of the Act, was causative of the subsequent personal injury of PVL. 
The evidence is clear from all specialists that the medical condition of PVL had arisen during the time [the applicant] was in-utero, and that it was a condition in being at the time of [the applicant's] birth, and I find that it was therefore not a personal injury caused by treatment or the lack of same to [the applicant's] physical condition, as when that treatment began and continued the medical condition of PVL was already in existence. 
It has to be remembered that not only did [the applicant] have the medical conditions of PVL and hypoglycaemia at birth, but it was the case that he was also suffering from macrosomia, that is, a great bodily size, and it was identified that that physical situation had been brought about by his exposure to the negative consequences of his mother's diabetes. 
Although it may well be the case that [the applicant's] ongoing hypoglycaemia condition, in the hours following his birth, may have had some effect on the ultimate medical condition of PVL, it is the case from a medical perspective the post-birth treatment was not causative of the onset of PVL, and if it is not causative, as a matter of law, it cannot come within the definition of a treatment injury in the Act which requires the injury to be a personal injury caused by the treatment. 
In addition to that negative situation, there is also the fact that section 33(2) of the Act states that a treatment injury does not include a personal injury that is wholly or substantially cause by a person's underlying health condition, and in the case of [the applicant] it is clear that PVL was part of his underlying health condition both prior to and subsequent to his birth. ”
Submissions of the Parties 
It is submitted on behalf of the applicant that: 
… His Honour erred in his application of the law in finding that there was not treatment injury in [the applicant's] case due to the fact that his post-birth treatment was not causative of the onset of his brain injury PVL. 
It is submitted that the focus of the legal test here should have been on the eventual damage rather than the onset of the condition. What should be examined in these types of cases is whether a failure to treat which worsens an underlying condition is a treatment injury, even though the treatment did not cause the onset of the condition. ”
In both the submissions in support of the application for leave to appeal and the reply submissions filed on behalf of the applicant it is submitted that confusion arises through Judge Beattie's use of the term “onset of PVL” as to whether he was considering the “technical onset of the PVL pathology” or the onset of the “substantive injury conditions” ultimately suffered by the applicant. As a result of this confusion of terminology, the applicant has submitted that Judge Beattie applied the wrong legal test so as to focus “on the underlying condition rather than whether the treatment was responsible for the greater end damage”
The respondent opposes leave to appeal being granted on the grounds that Judge Beattie correctly determined the appeal on its facts and therefore no bona fide question of law arises for resolution by the High Court. Notwithstanding this position, the respondent provided extensive submissions on what Judge Beattie meant when he used the term “onset of PVL”. In particular it was submitted on behalf of the respondent that with reference to the context apparent in the judgment, Judge Beattie used the term “onset of PVL” to refer to the applicant's substantive injury condition rather than the technical onset of the PVL pathology, and that any “potential ambiguity is inconsequential when the decision is viewed as a whole”
Having considered the submissions of the parties and the judgment at issue, I conclude that it is appropriate that leave to appeal be granted on the basis that the way in which the terms “onset of PVL” was used throughout the judgment does give rise to an issue as to whether the correct legal test was indeed applied which is capable of bona fide and serious argument. 
In particular while the respondent has attempted to argue that the term “onset of PVL” referred consistently to the substantive injury condition, this requires reading a substantial amount into the judgment and ambiguity nonetheless remains, specifically in paragraph [30] of the judgment where Judge Beattie refers to “ultimate medical condition of PVL”, as distinct from the “onset of PVL”. Instead, the distinction drawn in this paragraph, coupled with the fact that in the same paragraph Judge Beattie accepted that the ongoing hypoglycaemic condition “may have had some effect on the ultimate medical condition of PVL” but “was not causative of the onset of PVL” would appear to confirm the applicant's contention that His Honour was focused on the “technical onset of the PVL pathology” rather than the ultimate medical condition and therefore failed to apply the general proposition accepted by both parties “that a substantial contribution to a subsisting clinical condition, caused by treatment, could found a treatment injury claim”
The application is allowed. Leave to appeal is granted on the following question: 
“Did the District Court's use of the term ‘onset of PVL’ lead to an error of law by not considering whether the applicant's treatment substantially contributed to a subsisting clinical condition and thereby found a treatment injury claim? ”
Costs on the application are reserved. 

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