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Accident Compensation Cases

Moloney v Accident Compensation Corporation (DC, 12/10/17)

Judgment Text

Judge G M Harrison
Ms Moloney applies for leave to appeal to the High Court on a question of law pursuant to s 162 of the Act against a decision of Judge L G Powell of 1 July 2016. 
On 20 July 2016 Judge A N MacLean issued a minute directing the parties to file submissions by specified dates and that once file, the application would be determined on the papers. Submissions have now been filed. 
The issue 
Judge Powell identified the issue as follows: 
“ … whether the appellant, Shereen Moloney, is entitled to cover for a treatment injury as a result of having experienced ongoing pain symptoms following surgery to repair a right inguinal hernia, the surgery taking place on 9 June 2008. ”
The Corporation had declined the claim on the basis that it did not meet the criteria for a treatment injury and that decision was upheld on review. 
The Judge noted that in order to establish cover for a treatment injury, Ms Moloney must meet the test set out in s 32(1) of the Act, and specifically that she suffered a personal injury caused by treatment. 
The claim was lodged on 15 February 2010, almost two years after the hernia repair. 
The case for Ms Moloney was described by the Judge as follows: 
… Instead it was Mr Forster's submission, relying on analysis undertaken by Dr Michael Anderson, a specialist physician in occupational medicine and consultant physician in pain management, that the inguinal hernia repair surgery as a result of adopting the open operation method rather than a laparoscopic repair had in fact damaged Ms Moloney's nerves and that her ongoing pain symptoms were a consequence of that damage. ”
The Judge then described the issues to be determined as follows: 
The first and narrower issue requiring consideration is whether the inguinal hernia repair can give rise to a treatment injury, given that the physical damage identified is an accepted and inevitable consequence of the procedure used. In particular, the issue is whether Ms Moloney did not give her informed consent to this procedure as otherwise the damage caused to the nerves and their subsequent regrowth is otherwise a necessary part or ordinary consequence of the procedure. 
The broader issue requiring consideration is whether the pain condition experienced by Ms Moloney, which underpins the application for cover in this appeal is in fact causally linked to any physical injury, let alone one caused by the treatment she received. ”
An alternative argument advanced on Ms Moloney's behalf was that her pain may have resulted from a gradual process, disease or infection, but as the Judge pointed out: 
… the claimant must still establish a treatment injury pursuant to s 32 of the Act and only then will the gradual process, disease or infection that results from such treatment injury be covered. ”
The Judge then undertook and exhaustive evaluation of the medical evidence. The first involved reports from Tony Phang, a general surgeon who conducted the hernia repair operation. This was followed by a report from Andrew Bowker, a laparoscopic general surgeon and then Dr Rosamund Hill, a neurologist. 
Some months later, Ms Moloney was referred to the Auckland Regional Pain Centre and was seen by Dr David Kibblewhite and Dr Bob Large. 
None of these medical experts supported Ms Moloney's claim. I have not repeated the salient features of their reports, as they are already set out in the Judge's decision. 
Ms Moloney was then seen by Dr Michael Anderson, a specialist physician in occupational medicine and consultant physician in pain management. His conclusion was that the post-surgical neuropathic pain which Ms Moloney suffers from, is not a necessary or an ordinary consequence of the surgery of inguinal hernia repair. 
Dr Anderson's analysis was referred to Dr Peter Jansen, Senior Medical Advisor and Clinical Lead Complex Claims to the Corporation. 
Dr Jansen conclused: 
“Dr Anderson acknowledges that persistent pain following inguinal hernia repair in the absence of an identifiable cause is a recognised phenomenon. While we can agree Ms Moloney has persistent post-operative pain none of the tests or interventions has located any physical damage to account for that pain. ”
The Judge's conclusions 
As to the issue relating to informed consent, the Judge said: 
… Ms Moloney did not dispute the information about the different surgical options was provided but focused on the issue of damage to nerves posited by Dr Anderson, and such specific hindsight concerns raised so long after the fact I simply do not find credible. ”
He concluded: 
“ … Taken together the evidence falls well short of establishing any failure to obtain Ms Moloney's informed consent to the inguinal hernia repair. ”
It was clearly a finding of fact open to the Judge after assessment of all evidence on that issue. 
The Judge then continued at [50] where he said: 
“As a result, in the absence of any issue with regard to lack of informed consent having been established, the fact that an open operation for hernia repair was used means that, as found by the Reviewer, any cutting of the nerves was clearly a necessary part of the operation, while the process of the nerves re-growing after being cut was just as clearly an ordinary consequence of the surgery that took place. I therefore conclude that the elements required to establish a treatment injury pursuant to s 32(1) of the Act have not been met. ”
The Judge then went on to consider whether, if he was wrong in concluding Ms Moloney provided informed consent to the hernia repair, he was nevertheless not satisfied that the pain symptoms subsequently experienced by Ms Moloney were in any way causally linked to the surgery in June 2008. He said: 
… I do not consider that Dr Anderson's reports provide anything like a sufficient basis for concluding that Ms Moloney's ongoing pain symptoms have arisen as a result of that procedure. ”
He then proceeded to analyse in depth Dr Anderson's reports and gave extensive reasons as to why his conclusions were unacceptable. 
At [58] the Judge concluded: 
“Taken together, the failure of Dr Anderson to engage with or otherwise account for the changes in presentation observed by the other clinicians, as well as the conclusions those clinicians have drawn, lead me to the conclusion that no weight can be placed on his own conclusions, and as a result I conclude that Ms Moloney's pain symptoms did not arise as a result of the treatment she received. Instead these symptoms appear to have arisen independently of any discernible physical injury with at best a temporal link between the on-set of symptoms to the inguinal hernia repair surgery. This link was recognised by a number of clinicians including Dr Shepherd and Dr Bowker but does not provide any clear cause, let along[sic] any identifiable physical injury, to explain Ms Moloney's ongoing pain symptoms. ”
Again, that is a conclusion of fact open to the Judge after an exhaustive analysis of the evidence. 
In Impact Manufacturing (unreported) Doogue J HC Wellington AP 266/00 6 July 2001 the Judge said: 
“The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave. ”
This decision had been preceded by a decision of the Court of Appeal in Northern Cooperative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 where Has Litigation History which is not known to be negative[Blue] the Court held: 
“Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being prescribed. ”
The questions of law posed on behalf of Ms Moloney are actually no more than matters of disputed fact. Ms Moloney alleges that the appeal raises important issues of public importance regarding cover for injury to the nerves and the use of surgical mesh. I disagree that the appeal raises issues of public importance. Generally speaking, the issue on the appeal was whether the laparoscopic surgery undertaken to repair the hernia caused the pain identified almost two years later. That is a question of fact. 
Reliance was placed upon the decision of the Court of Appeal in ACC v Ambros [2007] NZCA 304Has Litigation History which is not known to be negative[Blue] . Mr Forster quoted from paragraph [67] as follows: 
“The different methodology used under the legal method means that a Court's assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the Court to draw robust inferences of causation in some cases of uncertainty — see at [32] above. However, a Court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture …  ”
In this case, the facts upon which a valid inference may be drawn simply do not exist. 
The questions of law posed by Mr Foster at paragraph 113 of his submission do not justify the grant of leave. His first question was: 
Did the District Court apply the civil standard of proof correctly, with appropriate regard to the decision in Ambros and Lord Mansfield's maxim. ”
In my view, yes. The Ambros decision made it clear that robust inferences may only be drawn on facts supported by the evidence. Those facts are absent in this case. 
The second question was: 
Did the District Court consider and correctly determine the claim for cover for a gradual process treatment injury? ”
Again, in my view the answer is yes. In my view the Judge correctly decided that for a gradual process injury to be established under s 20(2)(f) the claimant must still establish a treatment injury pursuant to s 32. The evidence fails to establish that. 
The third question of law posed was: 
Did the District err in law by rejecting Dr Anderson's evidence given the other evidence available to the Judge in this case, and the tactical burden on the Corporation? ”
In my view the Judge did not err in rejecting Dr Anderson's evidence. He gave extensive reasons for doing so, which plainly fulfilled his obligation to resolve the conflict of expert evidence. 
Accordingly, I conclude that no question of law has been identified which must be referred to the High Court for determination, and the application for leave is dismissed. 

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