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Accident Compensation Cases

Zhang v Accident Compensation Corporation (HC, 27/10/06)

Judgment Text

Venning J
This is an application for special leave to appeal from a decision of the District Court delivered on 18 November 2005. The application is made under s 165(4) of the Accident Insurance Act 1998. 
I take the strict factual and procedural background largely from the helpful summary set out in the judgment of the District Court. 
The applicant is a male child born on 15 September 1997 at National Women's Hospital. 
The applicant's mother had been under the care of Ms Goh, a midwife employed by the hospital from 13 March 1997. At that time the mother was 13 weeks pregnant. 
The applicant was delivered by planned caesarean section at National Women's Hospital. 
The applicant's condition at birth was described as normal and all the usual tests, such as the Apgar scores, were normal. 
Some neonatal jaundice was noted, but Bilirubin levels were found to be within normal range. 
The applicant and mother were discharged home on day 6 on the basis that Bilirubin levels would continue to be monitored. 
The appellant was readmitted to hospital on day 7 with evidence of increased jaundice. His Bilirubin level had reached 352. He was treated with phototherapy. 
The jaundice was resolved within a short period but other features of concern remained. The applicant would not cry, did not react to blood tests or other pain stimuli, sucked only mildly and had persistent head lag. 
The applicant was later diagnosed as having retarded development from unknown cause. 
An MRI scan of the brain carried out on 30 April 1998 disclosed a reduction in white matter which suggested a previous hypoxic ischaemic insult. This scan was interpreted by Dr Jamieson, a paediatric neurologist, as likely indicating a problem that had occurred in the last trimester of pregnancy but not in the immediate perinatal period. 
On 1 April 1999 a claim for cover was lodged on the applicant's behalf by his father Mr Zhang alleging medical error, both antenatal and post-natal, on the part of the staff at National Women's Hospital (including Ms Goh) who treated the applicant's mother and the applicant. Mr Zhang alleged those errors or omissions had caused the brain injury and developmental delay. 
Reports were obtained from all treating professionals. In addition independent opinions were obtained from paediatric specialists. 
Mr Zhang advanced two principal claims, insufficient attention and care to claimed thyroid problems of the mother during pregnancy and secondly, inadequate care of and attention to the jaundice following birth. 
The respondent declined the claim to cover on 18 May 2000 on the basis there was no evidence that any medical misadventure had occurred nor was there evidence of personal injury. 
The applicant sought a review of that decision. The reviewer sought further expert evidence from Dr Wong and Dr Brown, paediatricians. 
The respondent considered the further reports. It also sought further opinion. 
On 1 December 2004 after the respondent's Medical Misadventure Unit had reported further, it issued a fresh decision declining the applicant's claim for cover finding there was no evidence the applicant had suffered a physical injury as a result of medical misadventure nor that there had been any medical error. 
The applicant appealed to the District Court. In the decision delivered on 18 November 2005 the District Court concluded that the applicant's lifelong intellectual disablement had not been caused by any act or omission of any treating health professional and that the cause was unknown. Further, while the cause was unknown, the District Court was satisfied on the evidence that the causes alleged by Mr Zhang on behalf of the applicant were not the cause so that the applicant was not entitled to cover under the Medical Misadventure provisions of the Act. The appeal was dismissed. 
The application to the District Court for leave to appeal was filed in the District Court on 14 December 2005. 
On 15 May 2006 the District Court declined leave to appeal. 
The application to this Court for special leave to appeal was filed 31 May 2006. 
Mr Gray helpfully set out the personal background from Mr Zhang and his family's point of view. Mr Zhang and his wife immigrated to New Zealand from China some years ago. They both hold engineering qualifications. They have four children. In his papers Mr Zhang refers to the fact some of the other children have injuries with similar symptoms to the applicant. They also have differing degrees of developmental delay, although the applicant's is by far the most severe. Mr Zhang and his wife were both anxious during her pregnancy. Their anxiety arose from their experiences with their previous child who had been born in China and their expectations of health professionals in New Zealand. The matter was exacerbated by the tension that arose between the expectations and the care that they considered they were receiving. 
The parties are agreed that the provisions of the Accident Insurance Act 1998 apply to the review and appeal processes, although the cover provisions under the Accident Rehabilitation and Compensation Act 1992 apply to the applicant's entitlement to cover. The application for special leave to appeal is made under s 165(4) of the 1998 Act. Section 165 reads: 
165 Appeal to High Court on question of law 
party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. 
The leave of the District Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days after the District Court's decision. 
If the District Court refuses to grant leave, the High Court may grant special leave to appeal. 
The special leave of the High Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days of the District Court's refusing leave. 
Sections 72 to 78A of the District Courts Act 1947 apply, with any necessary modifications, to an appeal to the High Court under this section. ”
The effect is that an appeal may only be taken to the High Court with leave of the District Court or, in the event the District Court refuses leave, only if this Court grants special leave. The appeal is limited to a matter (or question) of law. 
The section provides a time period, 21 days, within which leave must be sought from the District Court to appeal. It is accepted that Mr Zhang, on behalf of the applicant, sought to lodge an appeal direct with the High Court within that 21 day period. The appeal documents were rejected on the basis they failed to comply. They were subsequently relodged with the High Court and an application for leave to appeal was also filed with the District Court on 14 December, but by then it was out of time. 
Although the application for special leave was filed in this Court within 21 days of the District Court decision refusing leave (on 15 May 2006), as the application for leave to appeal was not filed with the District Court within time as required by s 165(2), there may be no jurisdiction to hear the appeal. In Reden-Oldfield v ACC (HC Whangarei, CIV 2005-485-185, 8 December 2005) Lang J held that the failure to file the application for leave with the District Court within the time provided by s 165(2) meant the application to the District Court for leave to appeal was a nullity. As a result there was no power to file an application for special leave because the District Court was not refusing leave under s 165(3) when it dismissed the application. The District Court was in effect dismissing the application as it had no jurisdiction to accept and hear an application brought out of time. Lang J found there was no power to file an application for special leave so that the application was a nullity and the Court had no jurisdiction to grant special leave. 
Counsel for the respondent did not wish to take the jurisdiction point but, as counsel accepted, if there is no jurisdiction for the appeal then of course jurisdiction cannot be conferred by consent or by the respondent not taking the point. 
As amicus Mr Gray submitted there was a mismatch between s 165, the provisions of the Part 5 of the District Courts Act 1947 and the Part 10 of the High Court Rules providing for appeals. Mr Gray drew the Court's attention to r 701(3) which provides that Part 10of the High Court Rules apply subject to any express provision in the enactment under which the appeal is brought, or sought to be brought, in this case s 165 of the 1998 Act. Mr Gray then referred to the provisions of r 703(6): 
A party may apply for the extension of a period before or after the period expires. ”
and submitted that the power to extend the time to apply in r 703(6) could be resorted to in the present case as it was not contrary to the express provisions of s 165. 
I am not, however, able to accept that submission. Section 165 is in mandatory terms. It provides that leave “must be sought … within 21 days after the District Court's decision”. To suggest that time limit could be extended by application of r 703(6) would be to give r 703 primacy over the intent of Parliament as expressed in s 165 which is, that the application for leave must be brought within the 21 day period. The intent of the legislature is clear from s 165. If there is to be a further appeal to this Court from a decision of the District Court (from a decision of the Review Committee), then it will only be by leave (or special leave). The application for leave must be brought within 21 days after the decision of the District Court. That is an express provision in the applicable legislation as contemplated by r 701(3). The remaining provisions of Part 10 of the Rules including r 703(6) must be read subject to that. If Mr Gray's submission was correct then an applicant would not be required to make the application for leave to the District Court within 21 days but, provided they made a later application, (out of time), to the District Court which was dismissed on the grounds it was out of time, but then applied within 21 days of that dismissal for special leave, this Court would be obliged to deal with the leave application - even if it were made a number of years after the decision. That cannot be the position that Parliament intended. It would also be contrary to the objectives of certainty and finality in litigation. I consider, with respect, the decision of Lang J in Reden-Oldfield v Accident Compensation Corporation (supra) is correct. Unfortunately for the applicant there is no jurisdiction for this application for special leave. 
The merits of the application 
In the event, however, that I am wrong on the jurisdiction point, and at the invitation of counsel given the importance of this matter to Mr Zhang and the applicant I propose to express my views on the merits of the application for special leave to appeal on the basis that jurisdiction existed. 
The principles to apply 
The principles to apply on an application for leave to appeal were summarised by the Court of Appeal in Waller v Hider [1998] 1 NZLR 412. Blanchard J, delivering the judgment of the Court said: 
“ … The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal …  
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court. 
When the disputed matter is entirely or largely a question of fact the task of the applicant under s 67 is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant or, as in Cuff, the judgment below has special consequences (for example, bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts. ”
(p 413) 
In Waller v Hider the Court was considering an application for leave to appeal. This is an application for special leave. The use of “special” might suggest something more is required, (see for instance, O'Loughlin v Healing Industries Ltd (1990) PRNZ 464) but I note that in Payne v Attorney-General [2005] NZFLR 846 the Court applied the Waller v Hider test to an application for special leave. 
In Waller v Hider the Court was considering an application for leave which involved consideration of whether there was a question of law or fact capable of bona fide and serious argument. In the present case the further appeal (if leave is granted) is limited to a question of law. The consideration for the Court must be whether there is a question of law capable of bona fide and serious argument. It is not an opportunity for the applicant to pursue or revisit findings of fact. 
The basis for the applicant's claim to cover 
The applicant lodged the claim for cover and pursued it on the basis of medical error. As counsel properly accept, the provisions of the 1992 Act which provide for cover, require the applicant to identify a failure by a particular registered health professional to observe appropriate standards of care and skill. If such a medical error is identified, it is then necessary to consider whether the error has caused the physical injury to the applicant. 
Mr Zhang presented his own submissions. He identified five matters as the cause for his complaint, not all of which could amount to grounds for medical error. His five grounds of complaint are: 
An allegation the Health Board altered and/or removed clinical records. 
The interested parties response to: 
The poor feeding that the applicant exhibited during his first five days of life. 
Maternal hypothyroidism. 
Hyperbilirubinmia and 
Neo natal transient hypothyroidism. 
I put to one side Mr Zhang's concerns regarding the hospital records. The short explanation for that concern is that the documents he seeks access to were in fact never created. The consultations with Mr Zhang and his wife and, after birth with the applicant, were lengthy. The only documents created were those that were strictly necessary. There is simply no factual basis to support the first ground of complaint. 
That leaves the other four grounds, which could, if there was proper evidence, fall generally under the head of “medical error”
In essence, Mr Zhang's case is: 
That during the first trimester of pregnancy the health professionals treating his wife failed to recognise that she had a hypothyroid condition and failed to monitor the condition closely. 
That during the third trimester the health professionals failed to monitor the performance of her thyroid so as to protect the foetus. 
That following birth the applicant suffered from neonatal transient hypothyroidism but this was not understood or controlled appropriately and related to that, following birth, the applicant suffered from hyperbilirubinmia (jaundice) because of ABO incompatibility and this was not treated appropriately. In addition the applicant fed poorly in the first days of his life. 
Mr Zhang has had resort to the internet and has sought treatment and advice from a number of sources. From that research he has come to the conclusion in his own mind that: 
Maternal hypothyroidism in the first trimester can lead to failure of the development of white matter in the brain which can lead, inter alia to autism. 
The failure of maternal thyroid performance in the third trimester can lead to retarded development including brain development. 
Neonatal transient hypothyroidism can retard development. 
Hyperbilirubinmia (jaundice) is the main cause of the applicant's current autism and other symptoms of retardation. 
Poor feeding in the first days of the applicant's life inhibited his mental development. 
Mr Zhang considers these matters should have been addressed by the medical professionals attending to the applicant's mother, Mrs Ren during pregnancy and the applicant after birth. 
Question of law 
As noted the issue is whether there is a question of law capable of bona fide and serious argument. 
As Mr Gray outlined, Mr Zhang argues that the District Court has misinterpreted the available evidence and wrongfully preferred the evidence of Doctors Brown and Richardson to the more specialised and qualified experts who have written articles that have been presented by Mr Zhang. But, as counsel accepted, it was unlikely that that would be capable of giving rise to a question of law. 
A question of law can arise if a finding of fact is made by a Court either without evidence to support the finding or on a view of the facts which could not reasonably be entertained: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL); E v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAR 446; and Ramsey v Accident Compensation Corporation [2004] NZAR 1. But it cannot be said in light of the evidence available to the District Court Judge, particularly the evidence of Doctors Brown and Richardson that the Judge's findings: 
there was no evidence of any maternal thyroid condition causing brain damage to the appellant; 
the appellant never contracted Kernicterus or Bilirubin Encephalophy and that the phototherapy which was conducted when the SBR reached 350 was immediately successful in resolving that particular condition; 
the applicant did not suffer any untreated medical condition which caused any brain damage or developmental delay; 
there is no evidence the appellant had transient congenital hypothyroidism; and 
the applicant's condition has not been caused by any act or omission of any treating health professional and that the cause of his condition is unknown, were without any factual basis 
were made without an evidentiary basis or were unreasonable. The findings were consistent with the evidence before the Judge. 
As Mr Gray properly noted reports of Doctors Brown and Richardson and the clinical notes available supported the conclusions of the Court. 
Mr Zhang did not attempt to identify questions of law but rather focused on the factual matters of concern to him, a matter to which I will return. 
Mr Gray suggested that it may be possible to state, as a question of law, whether the Court should, on policy grounds, modify the rules of causation in respect of autism where science does not help to understand the causes of autism and where autism is consistent with maternal hypothyroidism. In posing that possible question of law Mr Gray referred the Court to cases where the Court has modified the appropriate test of causation at common law: McGhee v National Coal Board [1973] 1 WLR 1; Wilsher v Essex Area Health Authority [1998] AC 1074; and Fairchild v Glenhaven Funeral Services Limited [2003] 1 AC. 
The onus is on an applicant for cover to establish causation under the Act: Atkinson v Accident Rehabilitation Compensation Insurance Corporation [2002] 1 NZLR 374. As the Court of Appeal observed in that case: 
Public policy considerations have led to developments of the common law in relation to causation. But the public policy of the 1992 Act must be drawn from its statutory provisions. Our concern must be the policy of the statute rather than the policy of the common law. …  ”
The cases referred to by Mr Gray are examples of that relaxation of the requirement for strict causation at common law. In McGhee's case the medical evidence could not establish that if the workman in question had been able to wash immediately after work he would not have contacted the disease, but the Court considered that as there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury the claim succeeded. 
Similarly, the issue in Wilsher's case was whether a number of different factors including the administration of excess oxygen to a prematurely born baby could have caused its condition. The failure of the defendants to take the necessary precautions to prevent excess oxygen to be administered provided no evidence and raised no presumption that it was excess oxygen rather than one of a number of other factors that caused or contributed to the condition. In Fairchild & Ors where asbestosis sufferers had worked for a number of employers and it was impossible to pinpoint during which period of employment the onset of disease could be related to, the Court accepted that proof of each of the employers' wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. 
The significance of the McGhee and Fairchild cases in particular for the present case is that the Court was prepared to relax the causation requirements at common law. But there was medical evidence in the cases that the applicants'/workmen's condition was caused or at the least contributed to by certain established factors. The difficulty for the appellant was eliminating other factors. In the present case the issue is of a different focus. The evidence in the present case is that whatever has caused the applicants' medical condition it was not the factors that the applicant and Mr Zhang rely on. Further, whatever caused the applicant's condition, it was not any medical error on the part of those treating him. Those are the positive findings of fact. With respect there is no factual basis in the present case for the question of law that Mr Gray suggested could be stated. 
I conclude that there is in this case no question of law capable of bona fide argument. 
The evidence in issue 
Before leaving the matter, however, I refer to aspects of the evidence which, on my view are a compelling answer to the applicant's case in any event. 
Mr Zhang for the applicant takes a different view to the medical evidence presented by the experts and that was before the Court. 
The principal evidence referred to by the District Court in its judgment was the expert opinion of the two paediatricians Dr Richardson and Dr Brown. They both reviewed the relevant records and clinical evidence available. Dr Brown concluded in a report prepared for the Health and Disability Commissioner, also relevant to the issues in this proceeding: 
“On reviewing the information available to me, I have no reason to doubt the opinion of experts such as Dr. Jamison, Paediatric Neurologist. The global clinical picture is not compatible with either ABO haemolytic disease leading to bilirubin encephalopathy, nor with foetal or neonatal hypothyroidism, nor a combination of these. The reduced white matter on his MRI of his brain with global developmental delay, hypotonia, and tendency to extensor posturing is consistent with an antenatal hypoxic ischaemic insult or insults. These insults are almost always only identified in retrospect with no outward signs of problems in pregnancy. There was no indication of significant ischaemic insult in the immediate perinatal period. This clinical picture is not caused by bilirubin encephalopathy and there was no evidence that his bilirubin level was high enough to have caused brain damage in any case. There is no evidence that hypothyroidism has caused his problems and even if his mother was mildly hypothyroid during the pregnancy (for which there is little evidence), this could not have been the cause of the current clinical picture. ”
(emphasis added) 
Dr Richardson himself noted: 
“ … on the question of staff either not understanding or of mismanaging the maternal thyroid condition causing brain damage in Xiudason. There is absolutely no evidence for this. ”
Dr Richardson went on to note that: 
“As far as Xiudason is concerned: 
He was not discharged early. 
He had his first bilirubin on the day following delivery – 16 September 1997 and the level was 129mmol/L. 
His bilirubin had only reached 319mmol/L by day five (Saturday 20 September 1997) when he was discharged with an arrangement to recheck the level on Monday 22 September 1997. 
When this level was checked on 22 September it was in the treatment zone and he was readmitted for appropriate phototherapy. 
His bilirubin levels were never at a level that could have caused kernicterus. 
Phototherapy was continued longer than normal ‘at mother's request’
His brain lesion on MRI is not one that is related to high bilirubin levels. ”
Against that clear evidence the applicant seeks to rely on material that he has obtained from the internet or from selected questions posed to certain doctors. I have considered that material, particularly the material of Professor Holdaway, Dr Watt and Dr Bhatia. As counsel for the respondent submitted, I consider it dangerous to rely solely on secondary information. Dr Brown covered that in his report of 5 September as follows: 
“I have reviewed the photocopied pages of a variety of textbooks provided by [the applicants]. Although there are a number of lists of clinical symptoms and signs, attempts to attribute Xiudason's clinical condition to these lists are difficult. When diagnosing underlying conditions, all health professionals attempt to use the combination of progressive history, the current symptoms, and clinical signs, which can be elicited. This clinical picture backed up by selected investigations allows a differential diagnosis list to be generated from which the most likely diagnosis and causes for the diagnosis are arrived at. It is always possible to find a sign or symptom in a list from a textbook and attribute this to a child and then arrive with some anxiety about possibilities for alternative diagnoses or causes of problems. ”
(emphasis added) 
In an attempt to provide further evidence in support of his application for review Mr Zhang has sought evidence from Professor Mitchell, a paediatrician in development paediatrics. Professor Mitchell has provided two reports, the first dated 22 February 2006 and a subsequent letter of 10 May 2006. 
There is of course a major issue as to whether or not further evidence should be admitted at this stage given the nature of the appeal, but it has to be noted that even Professor Mitchell's opinion is not entirely supportive of the applicant's case. In his letter of 22 February 2006 Professor Mitchell stated inter alia: 
“For the record: There is no evidence of ‘the maternal hypothyroidism’. … if there was a mild level of hypothyroidism in the last two months of pregnancy this is unlikely to have been of sufficient severity to result in the white matter damage in the brain and the severity of [Xiudason's] problems. …  
It is note worthy that the transient hypothyroidism even if present, would not have been the cause of this child's abnormality in the white matter because the MRI and hypotonia had already been identified. There is no evidence that this child's physical condition deteriorated and what is clear that the concerns about this child were recognised progressively. …  ”
And in the letter of 10 May 2006 in relation to the issue of kernicterus the Professor states: 
“ … I have reassured the father that this [the bilirubin levels] would not be at a level where one would expect kernicterus to develop and secondly although he has done extensive literature review, chronic features indicate that the problem is long standing …  ”
The overwhelming weight of the direct and admissible evidence is entirely supportive of the decision reached by the District Court. 
The application for leave to appeal must be dismissed. It is dismissed accordingly. 
There is no order for costs. I note orders have already been made regarding payment of the amicus' costs. 
I thank counsel, in particular Mr Gray, for their helpful submissions. 

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