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Accident Compensation Cases

Estate of Sheppard v Accident Compensation Corporation (DC, 16/10/14)

Judgment Text

Decision of Judge JA Smith on Application for Leave to Appeal to the High Court 
Leave to appeal is refused. 
Costs are reserved and no application is encouraged. 
Judge JA Smith
Leave is sought to appeal the decision of Judge Ongley in Estate of Ian Sheppard v Accident Compensation Corporation1
| X |Footnote: 1
[2013] NZACC 117 
issued on 24 April 2013. The appellant seeks leave to appeal on a question of law - that there was no causal link between the treatment failure and the death. Specifically: 
Did the learned Judge correctly interpret the requirements for causation as required by Accident Compensation Corporation v Ambros2
| X |Footnote: 2
[2007] NZCA 304 
; and 
Was the learned Judge correct to conclude that an evidential onus had not shifted on the respondent to show that the reduced life expectancy and death was not caused by the treatment failure? 
It seems to be common ground that there was no dispute that Mr Sheppard's treatment was deficient. The treatment failures have been well-documented. In particular, Mr Sheppard was not referred for appropriate follow-up examinations after the excision of 2008. 
District Court Decision 
The decision of the Court was that the failure would not have made a material difference to the outcome, on the balance of probabilities. The issue the Court was dealing with in this case is noted at [2]: 
The injury in question was untimely death, that is to say death earlier than would have occurred if the appellant had received proper treatment. ”
In that decision the Judge stated that answer depends on probabilities as it cannot be conclusively proved that death would not otherwise have occurred, or that life would have been significantly prolonged. 
At [3] of that decision the Court restates the question the current appeal addresses, of whether earlier death was wholly or substantially caused by the cancer and only marginally by the failure to treat. Later at [19] we see the core argument being that if proper treatment had been given at diagnosis, Mr Sheppard would have had at least a 5 year survival period (91% certain). 
The Corporation's position was that in October 2008 the melanoma had already metastasised to the axillary lymph node, which had taken a year to be clinically palpable. 
The Court discusses Mr Miller's contention, one repeated as a question of law in this case, that there was a tactical burden on the respondent as discussed at [55] of Ambros. This legal submission is discussed at some length by the Court in at [42] to [46], but the decision itself is a decision based on a factual conclusion. 
The essential conclusion of the Court was that, at best, Mr Martin's evidence supported a loss of chance. 
It appears to me that on the basis of the evidence before it the Court reached a factual conclusion that it was not satisfied that Mr Sheppard would have lived longer with treatment. That appears to be a conclusion open to the Court on the facts, and does not turn on an interpretation of the law. In fact, as far as I am able to see, the Court did not dispute the contents of the Ambros decision or disagree with Mr Martin's submission. 
Essentially, it reached a robust conclusion on the basis of the evidence before it, as it is obliged to do under the application of Ambros. In particular, it appears to me that the Judge accepted that the reduction in life expectancy could be a personal injury, but that it was not proven on the balance of probabilities in this case. 
I therefore agree with Mr Barnett's submission that no arguable question of law can arise on this appeal. In particular I conclude that both questions asked are not part of the ratio of the decision, and in fact, the statements within the evidence would tend to support that both of those matters were taken into consideration. The decision, however, in the end was made on the facts. 
I have concluded, therefore, that leave should not be granted. 
I note that there is a right to seek leave directly from the High Court. Accordingly, any issues of costs reserved however, any application is not encouraged. 

[2013] NZACC 117 
[2007] NZCA 304 

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