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Accident Compensation Cases

Atapattu-Weerasinghe v Accident Compensation Corporation (HC, 13/02/17)

Judgment Text

JUDGMENT OF WILLIAMS J 
Williams J
[1]
The applicant seeks special leave to appeal the decision of the District Court declining him coverage under the Accident Compensation Act 2001.1
| X |Footnote: 1
Accident Compensation Corporation v Atapattu-Weerasinghe [2015] NZACC 255Has Cases Citing which are not known to be negative[Green]  [coverage judgment]. 
This application follows the decision of Judge Harrison declining him leave to appeal.2
| X |Footnote: 2
Atapattu-Weerasinghe v Accident Compensation Corporation [2016] NZACC 73Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  [leave judgment]. 
 
[2]
Special leave may only be granted to bring a second appeal on a question of law.3
| X |Footnote: 3
Section 162 of the Accident Compensation Act 2001. 
Leave to bring a second appeal in this fashion is not lightly granted partly because leave has already been declined once in the District Court, and partly because the role of this Court on a second appeal is not broadly corrective. Rather, it is focused on issues of principle and matters of importance beyond the interests of the parties in dispute. 
[3]
White J in Cullen v ACC put the position succinctly as follows:4
| X |Footnote: 4
Cullen v Accident Compensation Corporation [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  at [5]. 
 
“The Court will exercise this power if satisfied that there is a serious question of law 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 a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration. ”
[4]
I will approach this application with that guidance in mind. 
Factual background 
[5]
The applicant worked in a bakery at a supermarket. In May 2009, a bag of flour fell on his left wrist injuring it. He was given a steroid injection to treat it. On 12 September of that year he suffered a rotator cuff injury to his left shoulder while working with one of the machines at the site. Because of ongoing pain, the applicant was prescribed diclofenac, a non-steroidal anti-inflammatory drug (NSAID). The left shoulder became infected at the site of the injury. 
[6]
On 24 September 2009, the applicant was admitted to Waikato Hospital. He was diagnosed with Methicillian-Resistant Staphylococcus Aureus (MRSA) septicaemia and multi-organ failure. He had an abscess in his left shoulder and was also diagnosed with necrotising fasciitis in relation to his right wrist and forearm. 
[7]
Necrotising fasciitis is a rare and life threatening disease with a high mortality rate. It is a disease that results in the death of the body's soft tissue. It was accepted that in the applicant's case, this was caused by the presence of MRSA bacteria in his bloodstream, but it is not possible to say when the applicant contracted the bacteria. It is probable, the parties subsequently agreed, that it was in his system and asymptomatic for some time prior to the original injuries in May and September. 
[8]
Progressive Enterprises (an accredited employer) initially accepted coverage for the wrist injury but not the shoulder injury. The decision to decline coverage for the shoulder injury was later overturned on review, and cover was granted on 10 June 2011. In the meantime, the applicant made three further claims, which are recorded as being:5
| X |Footnote: 5
This is how the claims are set out in a letter from AON dated 10 June 2011 declining cover. 
 
(a)
infection of left shoulder caused by the rotator cuff tear; 
(b)
infection of shoulder by the steroid injection given to the original left wrist injury; and 
(c)
shoulder infection and “septic arthritis — right” as a result of treatment with NSAIDs. 
[9]
The steroid injection claim has since been dropped but the other two remain. 
[10]
Because Progressive Enterprises failed to make decisions on the claims within the statutory time period, cover was deemed to be granted in accordance with s 58 of the Act in November 2010. Those deemed decisions were revoked in June 2011 on the basis that there was no causal nexus between any of the infection, the steroid injection (which at this stage was still a live issue), NSAIDs, and the original left shoulder injury. 
[11]
In April 2012, Mr Woodhouse undertook a formal review of the decision in accordance with the Act. It seems that in the context of the review, the parties agreed that both the right forearm infection (necrotising fasciitis) and the less serious left shoulder infection were part of all three claims. Mr Woodhouse overturned Progressive Enterprises' revocation, finding particularly that the claim that the infection was a result of the treatment administered (NSAIDs) was proved on the balance of probabilities. This decision reflected a narrowing of the compass of argument to injury as a result of treatment. 
[12]
ACC appealed this decision to the District Court. There the focus remained on the issue of causal connection between the NSAIDs treatment and the subsequent development of necrotising fasciitis. 
[13]
In the District Court, Judge MacLean preferred the expert opinion of the Corporation's infectious disease specialist, Dr Everts, and rejected that of the applicant's treating specialist, Dr Mills. The Judge found that a causal nexus between NSAIDs and necrotising fasciitis was not proved to the requisite standard. The reviewer's decision was set aside accordingly. 
[14]
The applicant then sought leave to appeal on five questions of law. Leave was declined by Judge Harrison. The applicant now seeks special leave on the basis of the same five questions put to Judge Harrison. They are as follows: 
(1)
Does the High Court's judgment in Accident Compensation Corporation v Bartels6
| X |Footnote: 6
apply when a decision deemed under s 58 is revoked under s 65? 
(2)
Did the District Court err in omitting to deliver a ruling on the validity of the 20(2)(g) claim? 
(3)
Did the District Court err in its analysis of causation on the 20(2)(h) claim? 
(4)
Are the principles in Daubert v Merrell Dow Pharmaceutical Inc7
| X |Footnote: 7
Daubert v Merrell Dow Pharmaceutical Inc 509 US 579 (1993)
as adopted in Lundy v R8
| X |Footnote: 8
Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273Has Litigation History which is not known to be negative[Blue] 
compatible with Accident Compensation Corporation v Ambros9
| X |Footnote: 9
Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340Has Litigation History which is not known to be negative[Blue] 
and can they form part of a valid appraisal of causation under the Act? 
(5)
Did the District Court take into account irrelevant considerations? 
[15]
For the logical flow of the judgment, I deal with question two last. 
Question 1: Does Bartels apply? 
[16]
The question as posed effectively asks whether deemed decisions under s 58 (for failure to comply with statutory timeframes) are covered by s 65(1) (decisions made in error). If they are, the rule in Bartels, which casts the onus on the Commission to show the decision was made in error, will apply.10
| X |Footnote: 10
Bartels, above n 6. 
 
[17]
Section 58 provides as follows: 
“(1)
When the Corporation fails to comply with a time limit under section 56 or section 57, whichever applies, the claimant is to be regarded as having a decision by the Corporation that he or she has cover for the personal injury in respect of which the claim was made. 
(2)
When subsection (1) applies, the Corporation must tell the person that— 
(a)
the time limit has expired without the Corporation having made a decision; and 
(b)
the effect is that the claimant has a decision that the claimant has cover; and 
(c)
the date of the decision is the date of the expiry of the time limit. ”
[18]
Section 65 relevantly provides as follows: 
“(1)
If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error. 
(2)
The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading. 
(3)
A revision may— 
(a)
amend the original decision; or 
(b)
revoke the original decision and substitute a new decision. ”
[19]
Judge MacLean held that because the relevant decision was deemed rather than made, s 65(1) can have no application.11
| X |Footnote: 11
Coverage judgment, above n 1, at [44]. 
But he also noted that the matter was not raised in oral argument either before the reviewer or him. 
[20]
On the application for leave to appeal, Judge Harrison agreed. The Bartels principle, he said, applied only where the Corporation had previously made a decision and then come into material demonstrating it had been wrongly made.12
| X |Footnote: 12
Leave judgment, above n 2, at [17]. 
Here, there was no fresh material; rather the information upon which the decision could be made was only obtained after the deeming in s 58 had been triggered. The decision was deemed, rather than made. Section 65(1) did not, he considered, speak to that circumstance. 
[21]
On reflection, I agree with that reasoning. Section 65(1) requires the Corporation to consider that it “made a decision in error”. Section 58 on the other hand, while it says the claimant is to be “regarded as having a decision by the Corporation that he or she has cover” if relevant time limits are breached, also provides that the Corporation must tell the person that the relevant time limits have expired “without the Corporation having made a decision … ”. These terms make it clear that s 65(1) does not apply to situations in which no decision has actually been made. 
[22]
With that provision in mind, it seems clear that s 65(1) and (2) cover two different situations. The first, where a decision has been made and is now felt to be erroneous; the second, where no decision has been made, cover is deemed to be granted, and the Corporation wishes to revisit that. Bartels does not speak to the second situation. 
[23]
I do not consider that the applicant's submissions with regard to legislative history impact on that straightforward interpretation exercise. Mr Hlavac is right, the advantage gained by the claimant in this respect is an entitlement to retain any payments made before the revision is completed in accordance with s 65(2). The reverse onus, as provided for in Bartels, only makes sense because an actual error has been identified by the Corporation in the earlier decision. It seems entirely fair that, in that situation, the Corporation should be required to justify the change. But in the absence of such error, reversal of the onus makes no particular sense. I conclude therefore that although the question raises a bona fide question of law, it is insufficiently arguable to be the subject of a grant of special leave. 
[24]
Leave is declined accordingly. 
Question 3: Section 20(2)(h) and causation 
[25]
Judge MacLean's conclusion on causation was as follows:13
| X |Footnote: 13
Coverage judgment, above n 1, at [58]. 
 
“On weighing up the totality of the evidence available to me and the conflicting views of the specialists, my conclusion is that the scientific evidence while raising a risk of a causal link, does not go far enough to enable me to draw a robust inference. The reality is the specialist scientific evidence is inconclusive. On the evidence, there are a number of reasonable alternative possibilities including the trip to Sri Lanka with its known higher risk of contracting MRSA that makes it impossible to draw the necessary robust inference submitted on behalf of the first respondent. ”
[26]
The applicant argued that Judge MacLean had misapplied the two stage test set out in Ambros.14
| X |Footnote: 14
Ambros, above n 9. 
That is (he argued): 
(a)
does medical science recognise a “possible” relationship between “treatment A” and “injury B”; and 
(b)
if it does, has a link been established on the facts of the case? 
[27]
The applicant argued that even though the scientific evidence was that a linkage between NSAIDs and necrotising fasciitis was possible, the Judge failed to proceed to stage two. His failure to do so represented an error. 
[28]
The respondent submitted that the applicant's analysis was incorrect. In essence the Judge concluded that the scientific evidence was at best equivocal. 
[29]
Since the appeal could relate only to a question of law, the Corporation argued that the applicant was required by Bryson v Three Foot Six Ltd15
| X |Footnote: 15
Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721Has Litigation History which is not known to be negative[Blue] 
to establish that there was no evidence to support Judge MacLean's findings before an error of law could be established. 
[30]
The Corporation accepted that whether MRSA was contracted in Sri Lanka was irrelevant, but submitted that did not detract from the Judge's fundamental and correct conclusion that the science about possible linkage was not sufficiently conclusive to justify the Judge moving to the second part of the Ambros test. 
[31]
Ambros is the controlling decision in respect of causation issues in this context. In that case the mother died two weeks after giving birth to her first child and one week after admission to hospital suffering from chest pains. The post mortem revealed that she had suffered two heart attacks, the first about a week prior to her death and the second, 24 hours prior to death. The heart attacks were secondary to a rare condition called spontaneous coronary artery dissection, a condition commonly associated with pregnancy and childbirth. This condition was neither diagnosed nor treated prior to Mrs Ambros' death. 
[32]
The High Court took the view that where injury or death occurred in close proximity to such treatment failure, and there was no evidence that death or injury was inevitable or no supervening cause producing that outcome, causation will be taken to be proved in the absence of evidence to the contrary. 
[33]
The Court of Appeal rejected this reverse onus approach. Applying the principle in Atkinson v Accident Rehabilitation Compensation and Insurance Corporation,16 the Court found that an ACC claimant must prove causation on the balance of probabilities in the ordinary way. The Court considered that was the appropriate approach notwithstanding the fact that the Corporation's role is inquisitorial rather than adversarial. Yet the Court acknowledged that in treatment-based claims, especially those involving multiple potential causes, the factual issues around causation will often be complex and the state of scientific knowledge uncertain. In such circumstances statistical analysis and epidemiological studies that may be general in nature and relate only to analogous cases, can nonetheless assist the Court in deciding whether causation may be inferred in the specific case. It will be open to the Corporation to draw “robust inferences” as to causation if there are general scientific studies that point to causation as a statistical possibility. The Court referred to the credibility factors identified by Sir Austin Bradford Hill in 1965. They included:17
| X |Footnote: 17
Ambros, above n 9, at [75]. 
 
(a)
that there is a statistical association between cause and effect; 
(b)
that association is accompanied by a clear dose response effect; 
(c)
that there is proximity in time between the two with the exposure or risk factor preceding the effect; 
(d)
that there are consistent results showing association from other epidemiological studies in different populations using different study designs; 
(e)
that analogous circumstances produce similar results; 
(f)
that the association makes biological sense based what is known about the condition. Such evidence may include animal experimentation; 
(g)
that there is experimental evidence (such as removal of the exposure) which produces a decrease in occurrence; and 
(h)
that a singular putative cause is likely to support causation. 
[34]
Although the Court in Ambros rejected a reversal of the legal onus, it was accepted that the stronger the statistical and epidemiological evidence based on the Hill factors, the more likely it will be that the tactical burden in the claim will shift to the Corporation. But, the Court was at pains to underline, evidence of the mere risk of causation will not suffice to provide a basis for the drawing of robust inferences.18
| X |Footnote: 18
At [70]. 
Caution is required but not timidity. 
[35]
Finally, and importantly, the Court noted that any causation assessment must be based on the whole of the evidence:19
| X |Footnote: 19
At [67]. 
 
“Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the whole of the lay, medical, and statistical evidence, and not be limited to expert witness evidence. ”
[36]
In my view, it is arguable that Judge MacLean incorrectly applied these principles to the facts in the applicant's case even though he referred to “the totality of the evidence”.20
| X |Footnote: 20
The Judge's conclusion is set out at [25] above. 
 
[37]
By emphasising that on Dr Everts' evidence, some studies supported a correlation between NSAIDs and necrotising fasciitis, and others did not, and that there was, therefore, insufficient scientific consensus on the possibility of causal nexus, it may be argued that the Court failed to consider other case-specific factors emphasised by Dr Mills. He mentioned, for example, the apparent proximity in time between treatment and disease. Nor did the Judge appear to consider the applicability of other factors referred to by Dr Everts including his fear of a precedent effect for the Corporation if causation is found in this case. 
[38]
As Spigelman CJ noted in Seltsam Pty Ltd v McGuinness21
| X |Footnote: 21
Seltsam Pty Ltd v McGuinness [2000] NSWCA 29, (2000) 49 NSWLR 262Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [94]. 
in circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the courts are not thereby disenabled from making decisions as to causation on the balance of probabilities. Case specific factors may be important here. 
[39]
While I cannot predict the result of a further inquiry into these and other relevant matters, I am satisfied that the matter is sufficiently important and arguable to warrant further inquiry. 
[40]
I will come back to the appropriate form of the question at the conclusion of this judgment. 
Question 4: Applicability of the Daubert principles 
[41]
Judge MacLean took the view that the factors set out in the US Supreme Court decision Daubert v Merrell Dow Pharmaceuticals Inc22
| X |Footnote: 22
Daubert v Merrell Dow Pharmaceuticals Inc, above n 6 applied in relation to scientific evidence in Lundy v R, above n 8, and by the Canadian Supreme Court in R v J-LJ (2000) 2 SCR 600
could be of assistance to courts seeking to test the applicability of scientific evidence in ACC treatment cases. These were:23
| X |Footnote: 23
Coverage judgment, above n 1, at [3]. 
 
(a)
whether the theory or technique has been tested through scientific methodology; 
(b)
whether the theory or technique has been subjected to peer review and publication; 
(c)
the known or potential rate of error or the existence of standards; and 
(d)
whether the theory or technique used has been generally accepted. 
[42]
The Judge considered that at this stage, the theory of causal nexus between NSAIDS and necrotising fasciitis was still being tested and there was no general acceptance that a nexus existed. These were, he said, two relevant Daubert principles.24
| X |Footnote: 24
At [51]. 
The threshold therefore had not been reached from which robust inferences could be drawn. 
[43]
The applicant argued that the Daubert principles have no application in New Zealand because they are incompatible with the test in Ambros which was a “possible connection” approach whereas, according to the applicant, Daubert requires a much stricter “widespread acceptance” standard in relation to science. While, the applicant argued, the Judge correctly cited the Ambros test, the judgment read as a whole, as if he in fact treated the Daubert principles as decisive. 
[44]
For the Corporation, Mr Hlavac argued that the Judge correctly applied the appropriate Ambros test and simply used Daubert to provide further guidance not “inflexible rules” in relation to causation and scientific evidence. 
[45]
Secondly, Mr Hlavac argued that the Daubert principles were, in any event, consistent with Ambros. And further, the Daubert principles have been accepted in the criminal context in Lundy v R;25
| X |Footnote: 25
Lundy v R above n 8. 
and in respect of expert evidence generally in Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd.26
| X |Footnote: 26
Prattley Enterprises Ltd v Vero Insurance New Zealand Ltd [2016] NZCA 67, [2016] 2 NZLR 750Has Litigation History which is not known to be negative[Blue] . See especially [102] and n 50. 
Mr Hlavac appropriately noted however that both Prattley and Lundy (and for that matter Daubert) related to admissibility, an issue that does not arise in the context of ACC claims.27
| X |Footnote: 27
See s 156(1) with respect to appeals and s 141(4) with respect to review hearings. 
Nonetheless, he submitted, these authorities speak also to the weight to be attributed to such evidence and ought properly to be flexibly applied when novel evidence is in issue. 
[46]
The second point is an important one. The leading New Zealand cases either referring to or adopting Daubert are (as was Daubert) about admissibility. In Daubert itself, this was by reference to the equivalent in the US Federal Evidence Code to the admissibility test for expert evidence in s 25(1) of the New Zealand Evidence Act. It is also to be remembered that Daubert represented a substantial freeing up in the admissibility of scientific evidence. It overturned the rigid “general acceptance” test in Frye v US.28
| X |Footnote: 28
Frye v US 54 App DC 46; 293F 1013 (1923)
 
[47]
Although there is overlap between the Hill factors referred to in Ambros, and the Daubert principles, they are not the same. In my view, it is arguable that displacing the Hill guidelines for acceptability of scientific evidence for the Daubert principles is inconsistent with the acceptance of the former in Ambros. Again, this is a novel question of some significance in principle and at least of sufficient importance to warrant further appellate consideration. 
[48]
Again, I will address the form of an appropriate question at the conclusion. 
Question 5: Irrelevant considerations 
[49]
Judge MacLean noted, as I have said, that, in addition to the inconclusive nature of current scientific knowledge on the question, there were:29
| X |Footnote: 29
Coverage judgment, above n 1, at [58]. 
 
“ … a number of reasonable alternative possibilities [for causation] including the trip to Sri Lanka with its known higher risk of contracting MRSA that make it impossible to draw the necessary robust inference submitted on behalf of [the applicant]. ”
[50]
The applicant argued that the origin of the MRSA was irrelevant. It was common ground that it probably pre-existed treatment. That was not the point. The issue was whether NSAIDs treatment caused the MRSA infection to morph into the more virulent necrotising fasciitis. 
[51]
The Corporation accepted that the origin of the MRSA was not relevant but submitted that the mistake was not material primarily because Judge MacLean was right about the lack of evidence as to the nexus between NSAIDs treatment and necrotising fasciitis. This meant ultimately the Court was right to find causation could not be proved and that was the only material point. 
[52]
This issue, as Mr Hlavac correctly noted, is really an aspect of the wider causation question reflected in one way or another in questions 3 and 4. In my view, it is arguable that the Judge's irrelevant reference to the origin of MRSA was potentially material. It may have suggested that the Judge misunderstood the biological processes that were the subject of contention between the parties in relation to the s 20(2)(h) treatment claim. It may also have demonstrated a misunderstanding of “the biological or pathological mechanisms” that combined or at least arguably combined to produce necrotising fasciitis. 
[53]
These go to the heart of the claim. I consider this issue too warrants further appellate consideration. 
Question 2: Section 20(2)(g) claim 
[54]
Section 20(2)(g) deems there to be cover for any personal injury “caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover.” As noted above, one of the claims was for infection following the rotator cuff tear, pursuant to this subsection. Although the initial claim seems to have related to the infection of the left shoulder, the submissions before me from both sides treated this claim as relating also to the necrotising fasciitis in the right forearm, rather than just the (less serious) left shoulder infection. 
[55]
It is then important to note that as the case evolved, the infection caused by injury claim ceased to be the focus of either the review decision or Judge MacLean's subsequent decision on appeal. Both decisions focused almost entirely on the causative effect of the NSAIDS treatment for the initial injuries (s 20(2)(h)), not whether the necrotising fasciitis was consequential on the shoulder injury (s 20(2)(g)). As far as I can tell this reflected the emphasis adopted by the applicant at least at the appeal stage. 
[56]
However, although Judge McLean did not explicitly consider the s 20(2)(g) claim when the appeal came before him, he did conclude that there were a number of reasonable alternative possibilities for the presence of MRSA in the bloodstream.30
| X |Footnote: 30
Coverage judgment, above n 1, at [58]. 
In the subsequent leave decision, Judge Harrison considered that that finding effectively meant that the applicant could not demonstrate on the balance of probabilities that the covered injuries (a rotator cuff sprain and a left wrist injury) caused the necrotising fasciitis because MRSA was likely already to be in the bloodstream. That meant, he said, no claim under s 20(2)(g) could succeed.31
| X |Footnote: 31
Leave judgment, above n 2, at [23]-[24]. 
 
[57]
The applicant argued that the original review application sought review of the three separate decisions, including this one. In filing its appeal to the District Court, the Corporation therefore necessarily raised the s 20(2)(g) decision as it was a possible basis for cover. The applicant submitted the District Court appeal was by way of complete rehearing, and s 20(2)(g) was in play. Judge MacLean should have answered the s 20(2)(g) claim, the applicant argued. 
[58]
Further, the applicant argued, the evidence was uniformly that the rotator cuff tear in the shoulder was seen at least as a contributing cause to the necrotising fasciitis: Dr Mills had said so in his report dated 5 September 2011 and repeated that view on 3 April 2013; Dr Everts concluded that the left shoulder infection occurred “at the site of a proven recent trauma”, and the infection “at that site can at least partly be attributed to the trauma”, in his report dated 7 June 2010; and in her 8 November 2009 report, Dr Yang advised that all treatment teams agreed that “on the balance of probabilities [Mr Atapattu-Weerasinghe's] subsequent course would not have occurred if he had not suffered the initial injuries.” The Judge had failed therefore to deal with an important and material issue in the case. 
[59]
The Corporation on the other hand argued that the applicant's stance was somewhat disingenuous. The focus in the District Court had been s 20(2)(h) even though there was technically a claim under s 20(2)(g) because that was the applicant's focus. The Corporation argued that while it was common ground that the necrotising fasciitis was caused by MRSA, there was no evidence that the MRSA was a consequence of the rotator cuff tear. The evidence suggested that it was instead a result of a separate and prior infection process. Thus while the Judge did not answer the issue that was technically raised in the claim and in submissions filed (but not orally argued), the Corporation submitted the evidence could not have supported an affirmative answer to the question in any event, so there was no purpose in putting it. 
[60]
The reviewer's statement of the issues covered both the s 20(2)(g) and s 20(2)(h) claims, but his analysis focussed entirely on the latter. This may be because he considered s 20(2)(h) to be the stronger basis for the claim, and, finding that there was cover on that ground, it was unnecessary to consider s 20(2)(g). 
[61]
As I have said, Judge Harrison declined leave for this question because Judge MacLean considered that there were a number of possible causes for the presence of MRSA in the bloodstream. But this analysis misses the point. As I said in relation to question five, the issue is not what brought the MRSA to Mr Attapatu-Weerasinghe's system, but what caused it to proliferate — the treatment (NSAIDS), the injury (shoulder tear), a combination of these or something else entirely. In fact, the Corporation accepted in relation to that question that the origin of the MRSA was irrelevant. Accordingly, it must be arguable that Judge MacLean's conclusion on source does not demonstrate that the s 20(2)(g) claim was addressed in substance. 
[62]
It was understandable that the reviewer did not address the s 20(2)(g) claim given his conclusions on the s 20(2)(h) claim. But the District Court appeal proceeded by way of rehearing,32
| X |Footnote: 32
Accident Compensation Act 2001, s 155. 
and both claims were technically before it. Mr Hlavac emphasised that the primary focus of argument in the District Court was the s 20(2)(h) claim and not the s 20(2)(g) claim. In my view, the fact that it was technically before the Court means that it is at least arguable that the Court was in error in failing to address it — although the extent to which the s 20(2)(g) claim was actually promoted by the appellant in the District Court may well be relevant to the final assessment. 
[63]
The Corporation says that this question is not capable of bona fide and serious argument because the evidence does not establish that the applicant should have been granted cover under s 20(2)(g). But the evidence does not seem to be that clear cut. The Corporation's infectious diseases expert, Dr Richard Everts, accepted that the shoulder injury was at least a partial cause of the infection at the site of the injury in the sense that the tear provided an encouraging environment for the MRSA to colonise and proliferate. That was so even though the bacteria are likely to have pre-existed a-symptomatically in the applicant's body. On the other hand, as to a possible causal link between the injury and the necrotising fasciitis, he considered that it was “a little more likely” that the forearm infection preceded the shoulder infection, rather than the infection spreading from the shoulder to the forearm. This conflicted with the evidence of Dr Mills, who considered that the shoulder injury contributed to the necrotising fasciitis. 

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