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Taylor v Accident Compensation Corporation [2006] NZACC 39 (20 February 2006)

IN THE DISTRICT COURT
HELD AT WELLINGTON

Decision No. 39/2006

UNDER The Accident Insurance Act 1998

IN THE MATTER of an appeal pursuant to Section 152

of the Act

BETWEEN RUSSELL JOHN TAYLOR

of Auckland

Appellant

(Appeal No. AI 570/01)

AND ACCIDENT COMPENSATION

CORPORATION a body corporate

duly constituted under the provisions of the said Act

Respondent

HEARING at AUCKLAND on 9 December and 21 December 2005

APPEARANCES/COUNSEL

A.C.M. Fisher for appellant

D. Tui for respondent

C. Garvey for third party

RESERVED DECISION OF JUDGE J. CADENHEAD

THE COURSE OF THE HEARING

[1] I part heard this case on 9 December 2005, when the evidence of the appellant, his sister, Dr Morris and his wife was heard. The evidence of Professor Moreton was ordered to be heard at a later date, after the brief of his evidence had been filed and served on the interested parties. At this hearing serious jurisdictional issues were raised and by agreement with the parties it was decided to hear these issues on 21 December 2005, before the evidence of Professor Moreton was taken.
[2] The issues that were raised was whether there was jurisdiction to hear the appellant’s allegation of medical error because:

• [a] The appellant had cover for medical mishap, and could not gain any further entitlements under the Accident Insurance Act 1998 therefore the issue of medical error was moot or academic.
• [b] Whether in the present circumstances the issue of medical error was for an ulterior purpose or outside the purview of the Accident Insurance Act 1998.
• [c] Whether in the present circumstances findings of medical mishap or error were mutually exclusive alternatives.
• [d] Whether procedurally as a result of the finding of medical mishap an appeal on the basis of medical error could still be brought within the time frame contemplated by the legislation.

[3] The parties have agreed that the issue of estoppel does not apply in respect to the decision of the Health and Disability Commissioner, although that decision, in my view, properly forms part of the narrative of facts.
[4] It seems that it is uncontested that the appellant on obtaining a decision for cover on the ground of medical mishap has gained all the entitlements that are available to him under the legislation and from a compensation viewpoint he can gain nothing further from a finding of medical error.

NARRATIVE OF FACTS

[5] The appellant sought cover for injuries sustained following surgery undertaken by Dr Tom Morris, general and vascular surgeon, on 11 November 1997. The Accident Compensation Corporation (“the Corporation”) granted cover to the appellant on the basis of medical mishap. The appellant wishes to also obtain cover on the basis of medical error.
[6] The appellant maintains that the conduct of surgeon, Dr Morris, fell below the reasonable standard of care in several respects before, during and after surgery. In particular the appellant maintains Dr Morris did not obtain properly informed consent before surgery; he failed to perform pre-operative investigations; he negligently performed the surgery; and he failed to provided adequate post-operative care.
[7] The appellant completed an ACC application form on 30 June 2000 seeking cover for post-operative symptoms caused by surgery on 11 November 1997. He had become concerned about a lump on the left side of his neck and was referred by his general practitioner to Dr Tom Morris, a general and vascular surgeon.
[8] Dr Morris examined the appellant and recommended he undergo a superficial parotidectomy, for a presumed tumour of the parotid gland. The subsequent pathology showed that there was no tumour present in the gland.
[9] Following surgery, the appellant suffered immediate pain and numbness in the area of the lobe of the ear on the affected side and gustatory swelling. Over the next two years the appellant received follow up from Dr Morris, who expected the complications to resolve.
[10] Some two years later, Dr Morris referred the appellant to a pain specialist, Dr Boas, who advised that in his opinion the appellant’s presentation related to: (1) severance of the auriculo-temporal nerve; and (2) likely nerve entrapment of the great auricular nerve.
[11] The Corporation sought, and obtained, further information from the appellant on 22 August 2000 regarding the circumstances of the surgery and the appellant’s post-surgical treatment. The appellant advised that the surgery was undertaken by Dr Tom Morris on 11 November 1997 and that he subsequently received treatment from Mr Graeme McDonald, neurological and spinal surgeon, and Dr R S Boas, pain management specialist.
[12] The Corporation then sought independent medical advice from Mr M Sexton, specialist general surgeon. Mr Sexton replied by email to the Corporation on 27 September 2000 recommending that the claim be declined as the appellant’s condition did not satisfy the rarity criteria.
[13] The Corporation wrote to the appellant on 28 September 2000 to advise that his claim for cover for medical error and medical mishap was declined. The appellant filed a review of that decision.
[14] An application for review form was completed on behalf of the appellant on 20 October 2000. The appellant sought cover for medical error and medical mishap. On 29 March 2001 the appellant’s solicitors filed the following evidence for the review proceedings:

• [a] Reports by Professor Randall Morton dated 13 February 2001 and 1 March 2001; and
• [b] An unsigned statement for the appellant.

[15] The Corporation considered the new information and obtained further advice from Mr Sexton. The Corporation then wrote to the appellant on 20 April 2001 to advise that it had reconsidered its decision of 28 September 2000 and on the basis of Mr Sexton’s advice now accepted that the appellant was entitled to cover for medical mishap. Rights of review were attached to the decision letter.
[16] The Corporation then investigated whether there had also been medical error. The Corporation sought advice from Mr Ross Blair, thoracic and vascular surgeon. Mr Blair replied on 2 May 2001 opining, inter alia, that there had been no medical error on the part of Dr Morris.
[17] On receipt of correspondence from the appellant’s solicitors, the Corporation wrote to Dr Morris on 5 July 2001 seeking further comment in relation to new allegations of medical error by the appellant. It does not appear that the Corporation received such comment from Dr Morris.
[18] A review hearing was conducted on 29 October 2001. The reviewer issued a decision on 13 November 2001 determining that the appellant was not entitled to cover for medical error.
[19] A notice of appeal was filed in the District Court for the appellant on 11 December 2001.
[20] The report by the Health and Disability Commissioner dated 25 February 2003 did not sustain the complaints made by the appellant.
[21] In this particular appeal the surgery was undertaken on 11 November 1997, during the operation of the Accident Rehabilitation and Compensation Insurance Act 1992 (“the 1992 Act”). The claim for cover, however, was not lodged with the Corporation until June/July 2000, while the Accident Insurance Act 1998 (“the 1998 Act”) was in operation.
[22] Section 423 of the 1998 Act provides that the 1998 Act operates in relation to claims for cover lodged after 1 July 1999 in respect of personal injury suffered before that date.

THE SUBMISSIONS OF THE APPELLANT

[23] I set out hereunder the relevant portions of the appellant’s submissions as they affect the jurisdictional issues under consideration:

“7. Further, section 8(3) of the Accident Insurance Act 1998 states:

“Part 6 provides a dispute resolution process for persons who are dissatisfied with insurers’ decisions about their cover or entitlements. The process involves the parties going through some or all of the following stages:

(a) A review by a reviewer allocated by the insurer:
(b) An appeal to a District Court:
(c) An appeal to the High Court on a question of law:
(d) An appeal to the Court of Appeal on a question of law.”
[24] The submission of the appellant is that he has a statutory right to appeal ACC’s decision about his cover in the District Court. The submissions continue:

“Two: There is Jurisdiction for Appeal

13. Dr Morris submits by way of a preliminary point that the Reviewer had no jurisdiction to hear the appellant’s review as there was no current review application on foot and that, in turn, this Court also has no jurisdiction.

14. Such a submission incorrectly overstates the actual position in several respects:

(a) ACC’s decision letter of 20 April 2001 was only in regard to medical mishap. There was no mention of medical error or of revoking or amending its earlier decision of 28 September 2000 in regard to medical error. Accordingly, the application for review of that decision (dated 20 October 2000), in regard to medical error alone, remained on foot. There was no ‘fresh decision’ in that respect.

AMJ v ACC Dec. No 197/2003, Beattie J, at paras 19 and 31.

(b) This position is consistent with subsequent events, namely:

• Despite the appellant being provided with a Request to Withdraw a Review Application by ACC, he did not elect to withdraw his review.
• On 14 June 2001, following a request by the appellant’s counsel to consider medical error (as ACC had not fully done so up until this point), ACC advised it could not accept that medical error had occurred and that if the appellant wanted to proceed with the review hearing, he should contact the reviewer. (Refer affidavit of BJ Johns, attachment 5).
• On 5 July 2001, following a further request by the appellant’s counsel, ACC agreed to investigate the matter of medical error further and obtain comment from Dr Morris. In turn, ACC suggested counsel advise the reviewer of the need to adjourn the review hearing pending the outcome of its investigations. (Refer affidavit of BJ Johns, attachment 7).

15. Further, even if the initial review application is extinguished (which is denied), the letter of 5 June 2001 from the appellant’s counsel is a request for a review in regard to medical error. (Refer affidavit of BJ Johns, attachment 4). In any event, there was no suggestion by ACC or Dr Morris at the review hearing that there was no requisite review application on foot. To the contrary, ACC’s conduct confirms otherwise.
16. Dr Morris refers to and relies on a number of cases in support of the submission that the appeal has no jurisdiction. With respect, those cases can each be readily distinguished on the facts with the present case.
    • (a) Taylor v ARCIC (212/98, Beattie J): The appellant failed to lodge a review application within the required 3 month period. Despite a request by the appellant, ACC declined to reconsider its decision that the appellant was out of time. The appellant lodged a review, arguing that ACC’s letter advising this was a ‘fresh decision’ conferring review rights. The Court held that letter did not amount to a fresh decision capable of review.
    • (b) Capper v ACC (236/03, Cadenhead J): The appellant failed to lodge a review application within the required 3 month period. ACC advised the appellant that it would reconsider its decision to suspend entitlement to weekly compensation and revise the decision, if made on an incorrect basis. As the appellant refused to attend an appointment with an independent medical reviewer, ACC declined to reconsider its decision. The appellant lodged a review of that decision. The Court held that the ACC legislation did not confer a right to review ACC’s letter declining to reconsider the initial primary decision. Jurisdiction cannot be conferred by consent.
    • (c) M v ACC (319/03, Cadenhead J): The appellant sought cover from ACC but was initially declined. Some three years or so after that decision, after seeking legal advice, the appellant sought reconsideration by ACC of its decision. ACC subsequently advised that it upheld its earlier decision and declined cover. The appellant sought a review and subsequently lodged an appeal. The Court held that, as the initial decision contained vague and ambiguous reasons for the declinature, ACC did not comply with its obligations of clearly advising the appellant of the reasons for declining her claim. The subsequent letter from ACC was therefore capable of review and the appeal was upheld.
17. Contrary to each of the above cases, in the present case, the appellant lodged his review application within time and there can be no suggestion that he was out of time to pursue that review or is incorrectly relying on subsequent correspondence from ACC as a fresh decision.
18. In summary, ACC did not revoke its decision in regard to medical error of 28 September 2000. The reviewer therefore conducted the review with the requisite jurisdiction. Accordingly, the application for review of 20 October 2000 was not extinguished by ACC’s decision of 20 April 2001, which related only to medical mishap. Further, ACC’s subsequent conduct and the fact it never fully investigated the appellant’s claim for medical error, would make it unjust for this Court to decline the appellant’s right to pursue his appeal against the reviewer’s decision.
19. Incidentally, the reviewer, in his decision, reached the conclusion that there was no medical error, not that the finding of medical mishap be upheld (as suggested at para 9 of the respondent’s submissions). It was medical error, not mishap, which was the focus of the hearing.

Three: Appeal Not an Abuse of Process

20. The appellant acknowledges there is no financial benefit in him pursuing this appeal. To the contrary, given the costs incurred in doing so, there has been a significant cost to him. That factor alone, however, should not remove his statutory right to appeal a reviewer’s decision to the District Court and to challenge the basis for his cover under the accident compensation scheme. As the appellant has submitted, there are fundamental flaws with the reviewer’s decision which he has the right to appeal and seek to have rectified.
21. Unfortunately both ACC, by its inaction in investigating the issue of medical error, and Dr Morris, by his refusal to address the appellant’s concerns until now, have added both time and costs to the appellant’s desire to rectify the error by ACC. As stated by Beattie J in AMJ v ACC (at para 24): “it is the duty of the MMU and the respondent to consider all aspects of medical error before coming to its decision ... that in its opinion no medical error has occurred.” In the present case, however, neither the MMU nor ACC complied with that duty, leaving the appellant with no option but to pursue this appeal.
22. The appellant asserts this should have been a case of medical error not mishap. Irrespective of the fact that the appellant suffered complications which were both rare and severe, there were aspects of the treatment given by Dr Morris which fell below that reasonably expected of a health professional in the circumstances. It is for those aspects that the appellant seeks a change in his cover to that of medical error. Where those aspects can be separated out from the actual rare and severe complications, a finding of error could sit concurrently; otherwise a finding of error alone should be made. If error is not found, however, and the treatment is found to have been “properly given”, then medical mishap is appropriate.
23. It is also simplistic to suggest that no appeal should lie in the present circumstances because to do so would be contrary to the legislative scheme. Medical error and, in particular, whether a health professional has been negligent in administering treatment is part of the overall legislative scheme. The appellant seeks his statutory right of recognition of the errors in treatment by Dr Morris.”
    

MOOT ISSUE

[25] I set out some the legal principles that have developed concerning the determination of moot or academic issues before a Court.
[26] In R v Secretary of State for the Home Dept, ex parte Salem [1999] 2 All ER 42 Lord Slynn said at pp 45, 46 and 47:

“In Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 at 470–471, [1944] AC 111 at 113–114 Viscount Simon LC said:

‘I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way ... I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.’

In Ainsbury v Millington [1987] 1 All ER 929 at 930–931, [1987] 1 WLR 379 at 381 Lord Bridge of Harwich, with whom the other members of the House agreed, said:

‘In the instant case neither party can have any interest at all in the outcome of the appeal. Their joint tenancy of property which was the subject matter of the dispute no longer exists. Thus, even if the House thought that the judge and the Court of Appeal had been wrong to decline jurisdiction, there would be no order which could now be made to give effect to that view. It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved. Different considerations may arise in relation to what are called “friendly actions” and conceivably in relation to proceedings instituted specifically as a test case. The instant case does not fall within either of those categories. Again litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved.’

These cases, however, concern disputes between parties as to private rights—in the Sun Life case as to the terms of an insurance policy, in Ainsbury v Millington as to the parties’ rights to the occupation of property initially held under a joint tenancy.

However, in R v Dartmoor Prison Board of Visitors, ex p Smith [1986] 2 All ER 651, [1987] QB 106 where a prisoner was charged with an offence under the Prison Rules 1964, SI 1964/388 (as amended), of doing gross personal violence to a prison officer, it was found by the board of visitors that there was no case to answer, but it was directed that a lesser offence of assault be preferred. On judicial review, the judge held that that direction was made without jurisdiction and prohibited the board from inquiring into the assault charge. The prisoner was no longer at risk from further disciplinary proceedings. Despite opposition from the prisoner, the Court of Appeal ruled:

‘It seemed to all the members of this court that the fact that [the prisoner] was no longer at risk of further disciplinary proceedings did not deprive the court of jurisdiction to hear this appeal; that there were in it questions of general public interest; and that, even if [the prisoner] is rightly to be regarded as having no interest in the outcome, the court should, in the exercise of its discretion, hear the appeal on the merits.’ (See [1986] 2 All ER 651 at 655, [1987] QB 106 at 115.)

In Abdi v Secretary of State for the Home Dept [1996] 1 All ER 641, [1996] 1 WLR 298 two Somalian nationals were refused asylum when they sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom’s obligations under the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954) Cmd 9171). I said:

‘Following the applications for judicial review the Secretary of State agreed to review their cases on the merits so that the outcome of these appeals will not directly affect the applicants. The appeals do, however, raise what counsel for the Secretary of State in the Court of Appeal accepted (per Steyn LJ) was a question of fundamental importance and a very difficult case.’ (See [1996] 1 All ER 641 at 645, [1996] 1 WLR 298 at 302.)

Your Lordships heard the appeal.

My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in r 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships’ House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise ‘On the facts of this case’; the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case”.

[27] In line with these principles New Zealand courts will not hear appeals where there is no longer any live issue between the parties to the proceedings : Finnigan v NZ Rugby Football Union Inc (No 3) [1985] 2 NZLR 190. In Ventec Corporation v Auckland and Tomoana Freezing Works [1990] 3 NZILR 274 the Court was informed by the Bar that there was no longer any live issue between the parties. Cooke P at p 275 said:

“The general principle that an appeal will not be permitted where there is no live issue between the parties and the questions desired to be argued are in that sense academic...”

[28] In Maddever v Umawera School Board [1993] 2 NZLR 478 Williams J at 502-3 said:

“Futility – mootness

In my view this is another case where refusal of relief would be inevitable for a number of reasons. First, there would be the futility of granting relief at this stage. This point was strongly relied upon by counsel for the board. It is indeed clear that the Court will not give a remedy if it would be useless to do so. In Fowler & Roderique Ltd v Attorney-General [1987] 2 NZLR 56, Casey J said at p 78:

". . . events have overtaken this application, rendering any order that the Court may now make of academic interest only. Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 Notice, it cannot be justified now."

This case can also be approached on the basis of the related doctrine of mootness. The mootness doctrine is really the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live.

Assuming for the sake of argument that the parents had an indirect right to sue as the guardians of their child while he was still a pupil, his departure from the school renders the case moot. A New Zealand example of mootness is Turner v Pickering [1976] 1 NZLR 129 where relief was refused because since the commencement of the proceedings, events had occurred which rendered the outcome of the case irrelevant.

The mootness doctrine is well developed in American constitutional law. In Sapp v Renfroe [1975] USCA5 626; 511 F 2d 172 (1975) a student at a public high school challenged the school's requirement of military instruction on the grounds that it violated his First Amendment rights. While the action was pending he graduated. The action was dismissed as being moot.

As I have already pointed out, almost three years have passed since the events in question. The child has long since left the school and so has the teacher. The ex-pupil is now a secondary school pupil. The board of trustees is not the same, its composition having been changed quite significantly in the meantime due to the ongoing processes of democratic elections. It is probably fair to say that in the ever-changing milieu of the Umawera Primary School, this incident has been entirely forgotten. To revive those instant events with costly further hearings would be meaningless.

It is not without interest that there is not a word in the statement of claim about any need to clear the name of the parents or the pupil. This is understandable since the pupil was never suspended or expelled and it surely cannot be argued that his reputation was harmed by the fact that he was reprimanded by a teacher over a playground incident.”

[29] In Eketone v Alliance Textiles [1993] 2 ERNZ 783 Cooke P said:

“The relief claimed in relation to the old contract was compliance orders, the setting aside of the contract, compensation for losses, and 'Such other relief as this Honourable Court in equity and good conscience thinks fit'. Compliance orders relating to the negotiations for the old contract would now obviously be pointless. The setting aside of the old contract as between the two appellants and the employer, which is all that the appellants could seek, would also be pointless unless it could lead to compensation or some other monetary award to them. But neither appellant gave evidence of any losses and the Employment Court considered that the claim for compensation had been effectively abandoned at the hearing. As this Court has had occasion to note recently in a case concerning the employment of a teacher, interest reipublicae ut sit finis litium. The public interest requires an end to law suits. At this stage it would not be right to allow any attempt to reshape a distinctly stale case with further evidence.”

[30] The third party submitted that in accordance with these principles there was no live issue before the Court and the issue to be determined was moot or academic. The appellant could not obtain any further entitlements and this Court does not have a declaratory function, at least under the 1998 legislation in respect to a finding of medical error.
[31] Substantially, the appellant met this submission by contending that pursuant to section 8(3) of the Accident Insurance Act 1998 a statutory right of review and appeal were conferred by this section for persons, who were dissatisfied with their insurer’s decisions about their cover or entitlements. A failure to decide the issue would be to effectively take away this right from the appellant. Further, the submission was that the appellant had incurred substantial costs in pursuing the issue of medical error.

ULTERIOR PURPOSE

[32] Closely allied to the moot issue is that of whether the proceedings are being used for a purpose ulterior the legislation.
[33] In Waitakere CC v Kitewhaho Bush Reserve Company Ltd (AP 23/02, 3 March 2004, High Court Auckland) Randerson J said:

“[64] The jurisdiction to strike out for abuse of process is well established in the courts of general jurisdiction. Power exists, for example, under r 186(c) of the High Court Rules to strike out proceedings as an abuse of process. Similar power exists under r 209(c) of the District Courts Rules 1992. In Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573, Tipping J, delivering the judgment of the Court of Appeal, stated at p 579:

‘Primarily, an abuse of process, as spoken of in the rule, occurs when a litigant uses the processes of the Court for an ulterior or improper purpose’.

[65] As McGechan J observed in Te Runanga O Ngai Tahu v Durie [1998] 2 NZLR 103, 107, the label “abuse” is a technical one and does not necessarily have pejorative connotations. As Richardson J observed in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8, 9 (CA), abuse in this context is a misuse of the judicial process which tends to produce unfairness and to undermine confidence in the administration of justice. In the same passage, Richardson J stated:

‘In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts’ processes are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.’

[66] What constitutes an abuse of process for the purpose of the relevant rules in the general courts or s 279(4) RMA is not capable of ready definition but it is designed to be a flexible remedy which may be applied to a wide variety of circumstances. It will not lightly be exercised because it has the effect of shutting out a party from the processes of the court. That can be even more important in the Environment Court where there may be a public interest element in many cases not present in private litigation in the general courts.

[67] Here, the Judge was entitled to conclude that the processes of the court were being abused given the plethora of applications; the number of alternative subdivision plans placed before the court (two of which had not even been lodged with WCC); the inability of Mr Mawhinney to identify which plans were likely to proceed and, if so, in what form; the staggering amount of evidence and submissions produced; and Mr Mawhinney’s evident failure to comply with the directions of the court.

[68] In addition to those matters, there were ample grounds to conclude that the judicial process in the Environment Court was being misused in the circumstances of the case. It is true there are wide powers in s 310 for the Environment Court to make a declaration including declarations about the existence or extent of any function, power, right or duty under the Act (s 310(a)); whether or not an act or omission (or a proposed one), contravenes or is likely to contravene the Act or a rule in a plan or proposed plan (s 310(c)); and whether or not an act or omission (or a proposed one) is a permitted controlled, discretionary, non-complying or prohibited activity or breaches ss 10 or 20 (s 310(d)).

[69] It is also true that s 310 provides that future acts or proposed activities may be the subject of declarations. As the Judge noted, this can be a useful mechanism to clarify a legal position under the RMA and avoid attendant costs and delay. But, the jurisdiction to grant a declaration under Part XII RMA may also be subject to misuse as the Judge concluded in the present case.

[70] Some analogy may be drawn with the cases and principles decided under the Declaratory Judgments Act 1908. In cases under that legislation, it is well established that the general courts are usually reluctant to make declarations in the absence of any actual case or genuine dispute between the parties. For example, in Gazley v Attorney-General (1994) 8 PRNZ 313, the Court of Appeal refused to make a declaration in the absence of any concrete case. The court, at 315, cited the following passage from the speech of Lord Loreburn in Glasgow Navigation Company v Iron Ore Company [1910] AC 293:

‘It is not the function of a court of law to advise parties as to what would be their rights under a hypothetical state of facts’”.

[34] From this passage it appears that the use of “ulterior” is not necessarily a pejorative term and even when a declaratory function is given by the legislation issues that are academic should not be decided on a declaratory basis. As can be seen the issue of ulterior purpose is often entwined with question of mootness.

THE PURPOSE OF THE LEGISLATION

[35] The title of the Accident Insurance Act 1998 is:

“An Act to maintain a no fault, comprehensive, insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who suffer personal injury and to provide opportunities for the scheme to be managed and delivered in different ways”

[36] The statutory purposes are set out as follows: Hist. s2: Repealed on 1 April 2000 by 2000 No 6, s7(a). The repealed s2 is listed below for reference.

“2. PURPOSES—

The purposes of this Act are to—

(a) Ensure that entitlements continue to be available—

(i) For persons who have cover for their personal injuries; or

(ii) For the spouses, children, or other dependants of such persons, if the personal injury for which the persons have cover is death or is physical injuries from which they die:

(b) Require all employers to purchase accident insurance for work-related personal injuries suffered by their employees:

(c) Enable self-employed persons to purchase accident insurance from insurers other than the Corporation for both work-related personal injuries and non-work injuries other than motor vehicle injuries:

(d) Restructure the Accident Rehabilitation and Compensation Insurance Corporation to—

“(i) Manage the non-competitive accounts; and

“(ii) Remove the underwriting role of the Corporation in respect of work-related personal injuries and in relation to certain self-employed persons; and

“(iii) Provide claims management and network services to the non-competitive accounts and those and other services to other insurers on a commercial basis:

(e) Allow insurance companies to compete to manage claims and underwrite accident insurance for all work-related personal injuries, and for non-work injuries (other than motor vehicle injuries) to self-employed persons, suffered on and after 1 July 1999.”

[37] The general nature of the scheme is set out by section 7 as follows:

“7. General nature of scheme

(1) This Act continues a “no fault” accident compensation scheme to provide statutory entitlements for all persons—

(a) Who suffer personal injury for which they have cover under this Act; or

(b) Who are the spouses, children, or other dependants of persons whose cover under this Act is for death or for physical injuries from which they die.

(2) This Act also continues the existing restrictions on any such person seeking to obtain compensatory damages for the personal injury through any proceedings in a New Zealand court.”

[38] As can be seen the statutory purposes are the provision of cover and compensation. The accent is to maintain a no fault, comprehensive, insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who suffer personal injury. The purpose of the legislation is not that of a disciplinary nature.
[39] In Ault (AI 536/03) Judge Beattie said:

“For the sake of completeness, I now proceed to consider the question of personal injury. It is axiomatic that a claimant is only entitled to cover under the Act for personal injury arising from medical misadventure. The District Court in its appellate jurisdiction under the Injury Prevention, Rehabilitation and Compensation Act 2001, Rehabilitation and Compensation Act 2001, is not constituted to simply sit in judgment on the actions of medical practitioners in relation to patients and whether they have or have not acted appropriately in any particular circumstance. That particular inquiry is for the Disability Commissioner under the Health & Disability Commissioner Act 1994. This Court is only interested in ascertaining whether any particular medical error has caused physical injury for which cover under the Act can be granted.”

[40] Section 35 in the 1998 Act defines “personal injury caused by medical misadventure” as follows:

“35. Personal injury caused by medical misadventure”: defined in this section and in section 357 (Repealed)

(1) Personal injury caused by medical misadventure means personal injury caused by medical error or medical mishap.”

[41] It should be noted that the cover is for medical misadventure, which may take the form of “medical error” or “medical mishap”.
[42] The relevant definition of “medical error” is set out by section 36 as follows:

“36. “Medical error”

(1) Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances.

(2) Such a failure includes a registered health professional's negligent failure to, for example,—

(a) Obtain informed consent to treatment from—

(i) The insured to whom the treatment is given; or

(ii) The insured's parent, legal guardian, or welfare guardian, as appropriate, if the insured does not have legal capacity; or

(b) Diagnose correctly an insured's medical condition; or

(c) Give the insured treatment.

(3) Medical error does not exist solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results.”

[43] The relevant definition of “medical mishap” is set out in section 37 as follows:

“37. Medical mishap”

(1) Medical mishap means an adverse consequence of treatment, when—

(a) The treatment is given to an insured, is given properly, and is given by or at the direction of a registered health professional; and

(b) The adverse consequence is suffered by the insured; and

(c) The adverse consequence is severe (as defined in subsection (2)); and

(d) The likelihood that treatment of the kind that was given would have the adverse consequence is rare (as defined in subsections (3) and (4)).”

[44] Cover is granted by section 39 for:

“2) Subsection (1)(c) applies to—

(a) Personal injury caused by an accident to the insured; or

(b) Personal injury caused by medical misadventure suffered by the insured; or

(c) Personal injury caused by treatment given to the insured for personal injury for which the insured has cover; or”

...

[45] A comparison with Section 5 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides:

“5. Definition Of “Medical Misadventure” (Repealed)

(1) For the purposes of this Act,—

Medical error means the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It is not medical error solely because desired results are not achieved or because subsequent events show that different decisions might have produced better results:

Medical misadventure means personal injury resulting from medical error or medical mishap:

Medical mishap means an adverse consequence of treatment by, or at the direction of,] a registered health professional, properly given, if—

(a) The likelihood of the adverse consequence of the treatment occurring is rare; and

(b) The adverse consequence of the treatment is severe.

(2) For the purposes of the definition of the term medical mishap, the likelihood that treatment of the kind that occurred would have the adverse consequence shall be rare only if the probability is that the adverse consequence would not occur in more than 1 percent of cases where that treatment is given.

(3) Where the likelihood that an injury would occur is in the ordinary course rare, but is not rare having regard to the circumstances of the particular person, it shall not be medical mishap if the greater risk to the particular person injured—

(a) Was known to that person; or

(b) In the case of a person who does not have legal capacity, was known to that person's parent, legal guardian, or welfare guardian, as the case may be,—

prior to the treatment.

(4) For the purposes of the definition of the term medical mishap, the adverse consequences of treatment are severe only if they result in death or—

(a) Hospitalisation as an inpatient for more than 14 days; or

(b) Significant disability lasting for more than 28 days in total; or

(c) The person qualifying for an independence allowance under section 54 of this Act.

(5) Medical misadventure does not include personal injury arising from abnormal reaction of a patient or later complication arising from treatment procedures unless [medical error or medical mishap] occurred at the time of the procedure.

(6) A failure to obtain informed consent to treatment from the person on whom the treatment is performed or that person's parent, legal guardian, or welfare guardian, as the case may be, is medical misadventure only if the registered health professional acted negligently in failing to obtain informed consent.

(7) Medical misadventure does not include a failure to diagnose correctly the medical condition of any person or a failure to provide treatment unless that failure is negligent.

[(8) Where personal injury to a person results from medical error or medical mishap that occurs in a clinical trial, that personal injury shall constitute medical misadventure only where—

(a) The trial—

(i) Has been approved by an ethics committee approved by the Health Research Council or the Director-General of Health; and

(ii) The ethics committee has certified that it is satisfied that the trial is not conducted principally for the benefit of the manufacturer or distributor of the medicine or item in respect of which the trial is carried out; or

(b) The person has not agreed in writing to participate in the trial.

(8A) For the purposes of subsection (8) of this section, the term “treatment” includes anything done or omitted as part of a clinical trial.]

[(9) The Corporation,—

(a) In making any decision under this section in relation to any claim for cover under this Act that is claimed to be based on personal injury resulting from medical error, shall obtain and have regard to independent advice in accordance with procedures prescribed by regulations made under this Act; and

(b) In making any decision under this section in relation to any claim for cover under this Act that is claimed to be based on personal injury resulting from medical mishap, may obtain and have regard to independent advice in accordance with procedures prescribed by regulations made under this Act.]

(10) Where the Corporation considers that medical misadventure may be attributable to negligence or an inappropriate action on the part of a registered health professional it shall—

(a) Give the registered health professional a reasonable opportunity to comment on the matter; and

(b) If satisfied that there may have been negligence or inappropriate action—

report the circumstances to the appropriate body with a view to the institution of disciplinary proceedings, and to any other body that may be appropriate.

[(11) For the purposes of section 9(2) of this Act, the term “registered health professional”, in this section, includes a person who has qualifications equivalent to those of a registered health professional in New Zealand.]”

[46] Counsel have advised me that there are no similar provisions in the 1998 legislation dealing with reporting to an institute for disciplinary purposes. Again it should be pointed out that reporting is a matter for the Corporation, not the claimant.
[47] Section 284 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides:

“[284. Reporting of risk of harm to public

(1) This section applies to information collected by the Corporation in the course of processing claims—

(a) for treatment injury; or

(b) for personal injury of a type described in section 20(2)(d); or

(c) for personal injury caused by medical misadventure; or

(d) that are in the nature of claims for treatment injury, but are caused by a person who is not a registered health professional.

(2) If the Corporation believes, from information referred to in subsection (1), there is a risk of harm to the public, the Corporation must report the risk, and any other relevant information, to the authority responsible for patient safety in relation to the treatment that caused the personal injury.]

Hist. s284: Repealed and substituted on 1 July 2005 by 2005 No 45, s47. The repealed s284 is listed below for reference

“284. Reporting of medical misadventure

“(1) The Corporation may, at any time, bring to the attention of or refer to any appropriate person or authority any matters concerning medical error or medical mishap if the Corporation considers it necessary or desirable to do so in the public interest (whether for reasons of public health or public safety).

“(2) The Corporation must report an incident it accepts as medical error to the relevant professional body and to the Health and Disability Commissioner.

“(3) The Corporation may report an incident it accepts as medical mishap to the relevant professional body and to the Health and Disability Commissioner.

“(4) The Corporation may report an incident it accepts as medical error or medical mishap to—

“(a) the Director-General of Health; or

“(b) if the Corporation considers it appropriate, the employer of the registered health professional.

“(5) In considering whether or not to make a report under subsection (3) or subsection (4), the Corporation must consider—

“(a) the particular incident and any series or trend of incidents of that kind; and

“(b) whether or not the public interest requires that the incident be reported.

“(6) If the Corporation reports an incident of medical error or medical mishap under any of subsections (2), (3), or (4), the information to be provided is—

“(a) the name of the claimant (except where the report is to an employer under subsection (4)); and

“(b) the date of the medical error or medical mishap; and

“(c) the name of any registered health professional or organisation to which the medical error or medical mishap is attributable; and

“(d) the nature and circumstances of the medical error or medical mishap.

“(7) Subsections (2) to (4) do not apply if a claimant receives a deemed cover decision under section 58 or a deemed review decision under section 146.

“(8) The Corporation must report to the relevant professional body any concerns it has about a registered health professional's professional competence.”

[48] Section 285 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides:

Hist. s285: Repealed on 1 July 2005 by 2005 No 45, s48. The repealed s285 is listed below for reference

“285. Personal injuries in nature of medical misadventure

“(1) The Corporation may, at any time, report to the Health and Disability Commissioner or the Director-General of Health any incident or incidents of the type described in subsection (2).

“(2) The type of incident that this section applies to is a personal injury resulting from treatment by—

“(a) a treatment provider; or

“(b) a person, other than a treatment provider or a registered health professional, who holds himself or herself out as a provider of treatment or services in the nature of treatment.”

[49] As indicated that section was repealed on 1 July 2005, but section 284 above would cover the situation.
[50] In respect to the 1998 legislation there is no power vested in the Corporation to report to a relevant professional body. It seems that the appellant in the present case is seeking to obtain a finding of medical error and to report that matter to the Health and Disability Commissioner.

DECISION ON MOOTNESS AND ULTERIOR PURPOSE

[51] In my view there is no appropriate live issue for this Court to adjudicate upon. The appellant has obtained cover for ‘medical mishap’ and cannot receive any further entitlements upon a finding of ‘medical error’. I cannot see that section 8 of the legislation helps the appellant. I set out that section in full:

“8. Establishment of entitlements (Repealed)

(1) Persons who suffer personal injuries covered by the scheme must receive from their insurers entitlements for which they are eligible from the range of statutory entitlements detailed in Schedule 1.

(2) The range of entitlements available to persons covered by the scheme comprises—

(a) Treatment as provided for in Part 1 of Schedule 1:

(b) Weekly compensation as provided for in Part 2 of Schedule 1:

(c) Rehabilitation as provided for in Part 3 of Schedule 1, including—

(i) An individual rehabilitation plan:

(ii) Social rehabilitation:

(iii) Vocational rehabilitation:

(d) An independence allowance as provided for in Part 4 of Schedule 1:

(e) Entitlements arising from fatal injuries as provided for in Part 5 of Schedule 1.

(3) Part 6 provides a dispute resolution process for persons who are dissatisfied with insurers' decisions about their cover or entitlements. The process involves the parties going through some or all of the following stages:

(a) A review by a reviewer allocated by the insurer:

(b) An appeal to a District Court:

(c) An appeal to the High Court on a question of law:

(d) An appeal to the Court of Appeal on a question of law.”

[52] The dissatisfaction can only relate to a decision about cover or entitlement. Essentially, the submission of the appellant is that he is dissatisfied with the form of the cover. However, the cover is for ‘medical misadventure’ and the ‘entitlements’ there can be no dispute over. In my view, the issues sought to be litigated are moot or academic as far as they concern the appellant.
[53] Closely linked to this finding is that the Accident Insurance Act 1998 is concerned with statutory compensation. This statute does not have a disciplinary function and unlike the 1992 legislation or the 2001 legislation there is no power in the Corporation to report its findings to a relevant professional body. In my view, to use the legislation in this way is ulterior to the purposes of the statute. Even in the earlier and later statutes it was the Corporation that had that power not the appellant. For the reasons that I have given I hold that this Court does not have the jurisdiction to consider the issue of ‘medical error’ in all the circumstances of this case.

ALTERNATIVE EXCLUSIONARY REASONS FOR COVER

[54] The third party submits that the treatment given here cannot be both ‘properly given’ or that of ‘medical error’. In order to have cover for ‘medical mishap’ the treatment must be given ‘properly’. In Romano v ACC [2003] NZAR 673 Ronald Young J dealt with the differing and contradictory elements of sections 36 and 37 of the Act. He said in respect to section 37:

“[1] Section 37 is concerned to compensate those who suffer medical mishap in limited circumstances. Typically a mishap, effectively something that goes wrong from a properly performed treatment will not result in cover under the Act. The applicant must show rarity of mishap. The policy behind s 37 seems self-evident. Medical treatment has a risk even when performed competently, and so such failure arising from competently performed medical treatment will not normally entitle an applicant for cover under such an insurance scheme. However, where the risk is unusual (here one per cent or less) Parliament has decided it should be compensatable because of its unpredictable occurrence. The section acknowledges therefore that where medical mishaps are very rare, there should be cover.

...

[21] There is some strength as a matter of principle to Mr Miller’s submission. Section 37 is concerned with the situation when the treatment given to an insured is given properly. There is a credible argument that treatment involves not just the provision of surgical service but also the provision of a functioning prosthetic hip. The catastrophic failure of 80, 90 or 100 per cent of prosthetic hip devices could hardly therefore be said to be part of a “proper” treatment. In those circumstances, therefore, the appellant submits that the statistics should only include treatment when viewed retrospectively that is properly given and when the mishap occurs and thus the treatment substantially “fails”. The appellant believes that if the catastrophic failure numbers were taken out of the statistics the failure rate would be significantly reduced, perhaps to below one per cent. The appellant submits this is a question of law for me to answer, namely whether the respondent has used the correct statistical model to assess rarity.

[22] I do not have sufficient material to properly answer this question in this case. And it may be in any event that it is effectively a question of fact dressed up as a question of law. There is, however, a serious issue which requires to be resolved. There seems considerable force to the appellant’s argument that statistical material on failure rates should exclude the kind of catastrophic failures of prosthetic devices as claimed here. There does not appear to be proper treatment given where the patient is supplied with a device that is virtually guaranteed to fail. Serious consideration, therefore, should be given to analysing statistical failure rates taking into account this feature. And statistical failure rates will need to consider very carefully what the definition of “treatment” is. The adopted definition will have a significant effect on how rarity of result is assessed.

[23] The difficulty with this submission from the appellant’s perspective is that if this indeed is not proper treatment because the device provided was inherently defective, then this could not be a case of medical mishap. Medical mishap requires “proper” treatment.

[24] It would seem reasonable as a minimum that on each occasion when s 37 is considered, that the Corporation publish as part of the decision what they consider the “treatment” to be and the basis on which the statistical analysis of rarity is undertaken. They should also identify whether because for example, catastrophic failure, the statistics may be skewed. This at least will assist claimants in assessing whether “fair” rates of adverse consequences have been used.

[25] For the reasons I have given, the appeal is dismissed.”

[55] The appellant has a finding that he is entitled to medical misadventure cover on the basis of medical mishap: that is that the treatment he received was properly given. He has not appealed against that decision. He now seeks a finding that treatment was a “medical error”.
[56] The appellant relies upon the decision of Judge Beattie in AMJ (197/2003), where a finding of “medical error” was allowed to be prospected, despite a finding of “medical mishap”. However the facts of that case were different from the present case, as the cover for “medical mishap”, was confined to part of the personal injury only and did not include cover for all the symptoms for which “medical error” was sought.
[57] This case is distinguished on the facts as the appellant has cover for all the symptoms arising from the symptoms arising from surgery in 1997. Further the ‘treatment’ is identical in grounding both claims. It seems to me that in certain circumstances, and this is one of them, that a decision as to medical mishap is contradictory to that of medical error in respect of the same treatment. Clearly the appellant may pursue both alternative grounds, but an accepted finding on one necessarily precludes reliance on the other. If the treatment was properly given, it is difficult to see that same treatment could have been the result of a medical error.
[58] In view of my earlier finding, I do not have to grapple with the consequences of pursuing alternative contradictory grounds for cover. However, the clash of these grounds for cover highlights the problems of using the statute for an ulterior purpose.

THE PROCEDURAL ISSUE - JURISDICTIONAL ISSUE

[59] I set out the submissions of the third party as to the procedural issue and how it impacts upon jurisdiction:

“For the purposes of determining jurisdiction the relevant events are the following. The appellant’s claim for ‘personal injury caused by medical misadventure’ was declined on 28 September 2000. Following receipt of additional advice, ACC issued a fresh decision on 20 April 2001 (“the fresh decision”), pursuant to which the appellant was granted cover under the “medical mishap” provisions of the Act. The effect of this fresh decision was that the earlier decision dated 28 September 2000 was revoked: this was expressly set out in ACC’s letter to the appellant (care of his counsel) dated 26 April 2001.

The letter advising of the fresh decision expressly referred to rights of review, as was appropriate. At no time have those rights been exercised – that is, the appellant did not lodge an application to review the fresh decision within the statutory timeframe or at any later time.

The only application for review that was lodged is that dated 20 October 2000]. This was lodged by counsel on behalf of the appellant in relation to the decision of 28 September 2000. The application alleged both “medical error” and “medical mishap”. Once the fresh decision was issued this review application was no longer valid as it did not pertain to an extant decision.

In spite of the original decision on the claim being expressly revoked, and the absence of an application for review relating to the fresh decision, the review proceeded in October 2001. The reviewer considered all available information and reached the conclusion that the finding of “medical mishap” should be upheld. (It would in any event have been open to the reviewer to reach a finding of mishap in the absence of the fresh decision, as the medical evidence on which that was based was available to him).

The power of the Court on appeal, whilst broad, is confined to rehearing the issues dealt with at review. If the review proceeded without jurisdiction then it follows that a Court does not have jurisdiction to consider the same matter. It is therefore submitted that the Court has no jurisdiction to consider either an appeal relating to the original, revoked, decision or the fresh decision.

By way of authority for the proposition that jurisdiction does not exist in cases where a fresh decision has supplanted an earlier decision on a claim, see for example Capper v ACC (Decn No. 236/03). Judge Cadenhead requested that the parties file submissions on whether the review decision was ultra vires, on the basis that the matter the subject of the appeal appeared to be correspondence merely confirming a primary decision. His Honour held that although the ACC had issued a decision giving the appellant a right of review, jurisdiction could not be conferred on the reviewer outside the parameters of the statute:

[30] However it is important to analyse whether the mistaken conferring of the review rights by the respondent and the subsequent review hearing without protest to jurisdiction, conferred by the process of estoppel or waiver, gave any power to the reviewer to hear and determine the issue?

[31] The jurisdiction to review a primary decision is conferred by statute and no matter what action the respondent or the reviewer takes, jurisdiction cannot be conferred outside the parameters of the statute. No action taken by the respondent or the reviewer can vest a jurisdiction, which the Act does not give. The reviewer does not have any power to act, other than the power given by the Act (see Steinborn v Minister of Immigration (M1334-SW01 Auckland High Court, O’Regan J, 20 September 2001).’.

In Taylor v ARCIC (Decision No. 212/98) (under the 1992 Act) the appellant lodged a request that ACC reconsider an earlier decision to decline cover, on the basis of new medical evidence. ACC considered the new medical evidence and wrote advising that the decision remained unchanged. Treating this letter as a decision, the appellant lodged an application for review. ACC declined to allow a review on the grounds the original decision had only been confirmed following consideration of the new evidence, but its declinature letter contained rights of review. The reviewer declined jurisdiction to consider the matter on the basis that the correspondence in question reasserted the status quo.

Judge Beattie held (at page 8):

“Simply asking the Corporation to reconsider a previous decision to decline or terminate is not an application for entitlement under the Act and therefore advice that the Corporation does not intend to reconsider cannot be a decision within the meaning of [the Act].

“...it can only be the decision affecting entitlement which can be the subject of review and that this can only occur once. Once that decision is made it remains until there is a fresh application for entitlement with new grounds or a new basis of claim is made out. It must be more than simply a new application on old grounds that is, matters which have already been the subject of an earlier decision.’

His Honour then confirmed that it is only an amended decision or a substituted decision that constitutes a fresh decision capable of being the subject of review.

In this case it can be seen that the steps taken by ACC following the decision on the claim of 20 April 2001 amounted to a mere confirmation of that decision. Certainly, further investigation was undertaken in spite of the “medical mishap” finding the appellant continued to argue (via correspondence) that Dr Morris had acted negligently such that a finding of “medical error” should be made. ACC obtained yet further medical advice, but confirmed the decision on the basis of mishap: 14 June 2001. This letter did not constitute a fresh decision pursuant to section 73, but merely confirmed an existing decision.

In M v ACC (Decision No. 319/03) Cadenhead DCJ considered the characteristics of decisions by ACC which would attract rights of review and in so doing traversed relevant ACC case law. M involved a claim for cover by a person suffering post traumatic stress disorder after learning that a sexual partner had the HIV virus and had failed to disclose that to her. ACC determined the claim was not met, and later affirmed that decision. A review was lodged by the claimant following the second letter affirming the original decision. At paragraphs 22-3 the Court held:

“[22] The fundamentals of a decision are that a particular issue is decided, and that issue is conclusive subject to the right of a review within the three month period of time. This, as it were, is a statutory form of issue estoppel. Guidance can be had from considering how the law concerning issue estoppel is developed. Issue estoppel is concerned with the prior resolution of issues and precludes a party from contending the contrary of any precise point which, has once been distinctly put in issue and been determined against the other party.

[23] The underlying principles upon which the doctrine is based is the balance between the finality of litigation as a principle on the one hand, and individual justice on the other.”

[60] I have set out these submissions as they outline the objection of the third party on this issue. I have not set out the submissions of the respondent, as they substantially mirror my decision.

DECISION

[61] In effect these submissions of the third party is that the primary decision of the respondent, dated 28 September 2000, was revoked by a subsequent decision dated 21 April 2001 and the reviewer did not have jurisdiction to hear the review. Similar issue were raised in AMJ (197/2003) and the Court found that the respondent’s later decision of medical mishap did not revoke the earlier decision as to medical error. The Court held that there had been no revocation and there was still a matter of substance to be determined. The Court held that if the appellant’s other injuries had been included in the umbrella of ‘mishap’ then the issue would have been different.
[62] Accordingly, if I am wrong, and there is a live issue that may be pursued as to ‘medical error’ then I do not accept the third party’s submission as to the procedural jurisdiction. If there is no live issue or the use of the procedure is not for the purposes of the legislation then the finding of ‘medical mishap’ could be regarded as a fresh decision that stood entirely on its own feet and there could be no further review on the basis of ‘medical error’. Again, if findings of ‘medical error’ or ‘medical mishap’ are mutually exclusive in respect to the same ‘treatment’, then probably the appellant should have sought to set aside the finding of medical mishap.
[63] For the reasons that I have given I find in these circumstances that the reviewer had no jurisdiction to hear the review application as there was no live issue before him on the issue of ‘medical error’ or that the procedures for determining this issue were being used for an ulterior purpose. Accordingly I would dismiss the appeal. I reserve the question of costs.

DATED at WELLINGTON this 20th day of February 2006

(J Cadenhead)
District Court Judge