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Director of Health and Disability Proceedings v Marks [2005] NZHRRT 37 (23 December 2005)

Last Updated: 6 April 2006

Decision No. 37/05

Reference No. HRRT 20/05

BETWEEN THE DIRECTOR OF HEALTH & DISABILITY PROCEEDINGS

Plaintiff

AND JOHN MARKS

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms P J Davies Member
Ms J Binns Member

HEARING: 22 November 2005 (Wellington)

APPEARANCES:

Ms T Baker, Director of Health & Disability Proceedings.
Mr C Hodson Q.C. & Ms R Scott, for defendant.

DATE OF DECISION: 23 December 2005

DECISION

(APPLICATION TO STRIKE OUT)

Preliminary

[1]

Who is entitled to bring a claim for compensatory damages under s.57 of the Health & Disability Commissioner Act 1994 (‘the Act’)? Can such claims be brought only by or on behalf of the consumers of the health or disability services that are in issue? Or can such a claim be brought by others as well – such as a parent, a partner, or anyone else who can show that, as a consequence of healthcare services that have been provided to another, they have suffered harm of one or more of the kinds contemplated by the Act?

[2]	Our decision in respect of these issues is set out as follows:

•	Preliminary

•	Relevant circumstances

•	Legislation in issue

•	Argument for the defendant

•	Discussion

•

Decision

•	Consequences

Relevant circumstances

[3]

The matter has come before us in what was treated as an application by the defendant to strike out certain of the claims in this proceeding. It was accepted by counsel that for the purposes of this application the relevant allegations of fact are to be treated as being capable of proof in due course: Attorney-General v Prince & Gardner [1998] 1 NZLR 262. On that basis and for present purposes the relevant circumstances can be stated as follows:

[a]	The claim has been brought to the Tribunal by the Director of Health & Disability Proceedings (‘the Director’) under s.50(2) of the Act;

[b]	The claim concerns the standard of healthcare services that were provided by the defendant to an individual (we will call him ‘the son’) over a period of around 8 months in 1999. The son was clearly the ‘consumer’ of the defendant’s services;

[c]	The son suffered from a psychiatric illness. On 15 October 1999 he died as a result of injuries that he had inflicted the day before in an attempt to commit suicide;

[d]

The claim is not brought for or on behalf of the estate of the son. Instead it has been brought on behalf of the son’s parents. The Director’s pleading asserts that the parents are " ...deemed to be the ‘aggrieved persons’ pursuant to the Act." It also asserts that as parents of the consumer and as ‘aggrieved persons’ the parents have suffered humiliation and/or loss of dignity and/or injury to their feelings. It is said that they were closely involved with the care of their son, that they suffered grief as a result of his death and that they now ". . . live with the uncertainty of not knowing whether their son would have lived, had he received adequate care."

[4]	The prayer for relief includes claims for:

[a]	A declaration under s.54(1)(a) of the Act;

[b]	Damages under ss.54(1)(c) and 57(1)(c) of the Act in a sum of $40,000 on account of humiliation, loss of dignity and injury to feelings suffered by the parents;

[c]	Such other relief under s.54(1)(e) of the Act as the Tribunal might think fit; and

[d]	Costs under s.54(2) of the Act.

[5]

The application to strike out applies only to the claim for damages. Mr Hodson accepted that the Director is entitled to bring the claim in order to ask for a declaration and such other relief as might seem appropriate once the case has been heard. He was also anxious to make it clear that nothing in his submissions was intended to be disrespectful of the parents or dismissive of the loss that they have suffered. It was, however, his argument that there is no legal basis for the claim for damages that is advanced on their behalf. On that basis he sought orders to the effect that:

[a]	Paragraphs 1.2 and 8.1 to 8.3 inclusive of the First Amended Statement of Claim dated 31 October 2005 should be struck out in their entirety, and

[b]	The prayer for relief at paragragh 9.1 should be amended by deleting the words "on behalf of the aggrieved persons" in the opening line, and the claim for damages under s.57(1)(c).

[6]

For completeness we should note that, before the hearing of this application, Mr Hodson had also raised the potential application of s.4 of the Limitation Act 1950 as a defence to all of the claims. To an extent, taking that point at this stage would have involved asking us to reconsider the approach taken by the Tribunal in Director of Proceedings v C O (HRRT Decision 25/05, 9 August 2005). There would in addition have been issues concerning delay to be dealt with. In the circumstances Mr Hodson has reserved the defendant’s position in respect of those issues to be dealt with at the substantive hearing, should there be one: see W v Attorney-General [1999] 2 NZLR 709.

Legislation in issue

[7]

The Health & Disability Commissioner (Code of Health & Disability Services Consumers’ Rights) Regulations 1996 (‘the Code’) is promulgated under s.74(1) of the Act. As its name suggests, the Code establishes various rights for consumers of health and disability services. In this case the rights that are said by the Director to have been breached by the defendant when he provided services to the son are found in Right 4, which is entitled ‘Right to services of an appropriate standard’. The Director’s claim refers to alleged breaches of Rights 4(1) and (2). We set Right 4 in its entirety:

"(1) Every consumer has the right to have services provided with reasonable care and skill.

(2)	Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

(3)	Every consumer has the right to have services provided in a manner consistent with his or her needs.

(4)	Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.

(5)	Every consumer has the right to co-operation among providers to ensure quality and continuity of services."

[8]	The Code identifies those who hold the rights it establishes as being "consumers". That term is defined in the Code as:

" ... a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10) and 10 includes a person entitled to give consent on behalf of that consumer: ..." (cl.4)

[9]

These rights have to do with issues of effective communication, informed consent, the right to refuse services and the like. They are not directly relevant in this case. We note, however, that it was not suggested at any stage of the argument that the parents in this case might ever have been within the definition by virtue of having been in a position to give consent on behalf of their son.

[10]	The concept of a ‘health consumer’ is dealt with in s.2 of the Act in such a way as to include any person "... on or in respect of whom any health care procedure is carried out:". Health care procedure means:

" ... any health treatment, health examination, health teaching, or health research administered to or carried out on or in respect of any person by any health care provider; and includes any provision of health services to any person by any health care provider:"

[11]	There is no doubt that the defendant was a health care provider at the relevant times, and that the son was a health consumer who had all of the rights established by the Code in respect of the health treatment he received from the defendant.

[12]

The Code came into force on 1 July 1996, at the same time that Part 4 of the Act came into force. Part 4 of the Act deals with complaints, and particularly the investigation of complaints where breaches of the Code are alleged. Section 54 falls within Part 4 and it specifies the remedies that are available in this Tribunal where a breach of the Code is established. Section 54(1)(c) empowers the Tribunal to award damages in accordance with s.57. Of relevance for present purposes ss.57(1) and (2) provide:

"(1) Subject to section 52(2) of this Act, in any proceedings under section 50 or section 51 of this Act, the Tribunal may award damages against the defendant for a breach of any of the provisions of the Code in respect of any one or more of the following:

(a) Pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:

(b) Loss of any benefit, whether or not of a monetary kind, which the

aggrieved person might reasonably have been expected to obtain but for the breach:

(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved person:

(d) Any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.

(2) Subject to subsections (3) to (5) of this section, the Commissioner shall pay damages recovered by the Director of Proceedings under this section to the aggrieved person on whose behalf the proceedings were brought."

[13]

The section goes on to deal with various situations in which the aggrieved person is a minor or is mentally disordered. The subsections also refer throughout to an ‘aggrieved person’. Thus s.57, which is the section that sets out the Tribunal’s jurisdiction to award damages, does not use the word ‘consumer’ at all.

[14]

There is no definition of the words ‘aggrieved person’ in either the Act or the Code. So was the use of those words in s.57, and not the word ‘consumer’, a slip of the legislative pen? Or does the use of the words ‘aggrieved person’ in s.57 reflect a legislative intention to extend the right to claim damages in the Tribunal beyond the particular health and/or disability consumers whose rights under the Code are said to have been contravened?

Argument for the defendant

[15]

The argument for the defendant is that the words ‘aggrieved person’ in s.57(1)(c) can only apply to a ‘consumer’ as contemplated by the Code. Mr Hodson submits that only a ‘consumer’ has the rights conferred by the Code, and no one else. He described the parents in this case as being ‘secondary’ victims of any contravention by the defendant of the Code (the term is taken from the common law). He accepts without hesitation that the death of their son was something that would have been very difficult for the son’s parents. Nonetheless he argued that the only person who had rights under the Code in respect of the way in which the defendant conducted himself was the son. The parents are not ‘consumers’ as that word is used in both the Code and in the Act, and therefore they cannot be ‘aggrieved persons’ either.

[16]

Mr Hodson submitted that Parliament ought not to be taken to have conferred a right to claim damages on anyone other than those who are consumers under the Code. He argued that such a conclusion would be inconsistent with the common law position and that, if accepted, would open the floodgates of litigation. If recourse were to be available to those who are not consumers, then Mr Hodson asked: Where is the line to be drawn? Is the limit to be parents, siblings or children? If so, what of grandparents, uncles or cousins who may have been affected by the alleged breach? Is the Tribunal to differentiate in future between a first and second wife, or a de facto partner and, if so, what factors will affect the determination given the absence of any definition of the words ‘aggrieved person’? Mr Hodson argued that, taken literally, a total stranger to a case who learns of the facts in some way might thereby become severely aggrieved at the failings of the health system and so claim for injury to feelings as a result.

[17]

Against those concerns, Mr Hodson drew our attention to the decisions of the Court of Appeal in Bryce v Residual Health Management Unit (Unreported, CA 242/99, 22 August 2000 per Blanchard, McGechan and Doogue JJ) and van Soest v Residual Health Management Unit [1999] NZCA 206; [2000] 1 NZLR 179. Neither deals directly with the Act or the Code, but both were submitted to contain discussion of policy considerations that we should regard as relevant in the present case.

[18]

Bryce v RHMU (supra) involved a claim for compensatory damages by the mother of a child who had been injured at birth. Her claim was dismissed on the basis that (unlike the facts in Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549) she had not herself been afflicted by any recognisable psychiatric illness as a consequence of what had happened to her child. The Court made it clear that the requirement to establish that a secondary victim has developed a recognisable psychiatric illness " ... is a deliberate policy control against indeterminate liability and floodgate concerns." (paragraph [18])

[19]

In van Soest, the Court held that the relevant accident compensation legislation was such as to prevent personal representatives of various deceased individuals from bringing claims in negligence for compensatory damages in respect of alleged failures to adequately diagnose or treat those who they were representing. In a number of the cases the claimants had also claimed in their own capacity, as children or spouses of the primary victims. Much of the discussion in the decision concerns issues specific to the particular legislation applicable at the time of the different claims that were being advanced. There is also a review of the different approaches in a number of jurisdictions concerning circumstances in which the common law should recognise the right of a secondary victim to claim compensation as a result of learning of injury to, or the death of, a loved one.

[20]

The plaintiffs in van Soest did not say that they had themselves suffered from any recognisable psychiatric injury, but nonetheless claimed damages arising out of the grief they felt at the loss of their loved ones. The Court dismissed their claims, essentially (as Mr Hodson submits) on the basis that to countenance that grief might of itself be sufficient to support a claim might give rise to a flood of claims. The Court concluded:

"It does not seem in the best interests of society either to throw the Courts open to everyone caused distress by the negligent injuring of a loved one or to create the great uncertainty which would result from attempting to limit claims for emtional distress falling short of psychiatric injury by resort to vague epithets such as ‘abnormal grief’ or ‘severe emotional suffering’. Although the shifting boundaries of psychiatric knowledge and the nature of any diagnosis of the workings of the human mind may leave room for uncertainty in an individual case, as of course exists quite often in a diagnosis of physical illness or injury, the Court should in our view deny a damages claim of a secondary victim unless there is proof of a recognisable psychriatric disorder or illness" (at p 199, para [69]).

[21]

Both Mr Hodson and the Director agreed that the answer to the question raised in this matter involves an exercise of statutory interpretation in which the focus is on the Act and the Code, rather than the applicability or desirability of principles to be derived from the common law in relation to personal injury, or the authorities that deal with accident compensation legislation in New Zealand (unless, of course, there is something in the Act or the Code to indicate that Parliament intended the legislation to be applied in such a way).

[22]

Even so, Mr Hodson made the point that unless ‘aggrieved person’ in s.57 is interpreted as encompassing only those who are or were also ‘consumers’ under the Code, then the same floodgates concerns arise. It is a point which, in his submission, counts strongly against any intepretation that the words ‘aggrieved person’ can refer to anyone other than the consumer who is directly affected by the alleged breaches of the Code. Indeed Mr Hodson submitted that it was ‘inconceivable’ that Parliament would not have placed some limitation on the entitlement to damages under s.57.

[23]

Mr Hodson argued further that there is neither reason nor authority to support the conclusion that damages can be awarded to a person who was not himself or herself entitled to the protection of the Code, i.e., the consumer. In this respect our attention was drawn to the fact that the Tribunal has been given power to award ‘damages’ (rather than ‘compensation’) by the Act. Mr Hodson suggested that the word ‘damages’ should be taken as having been intended to import with it the principles associated with awards of damages at common law, including that there must be shown to have been a duty of care owed by the defendant to the plaintiff and a causal connection between the alleged breach and the damages claimed.

[24]

Mr Hodson accepted that when an issue is raised under the Code, the Health and Disability Commissioner is obliged to have regard to the interests of both the complainant and the aggrieved person, if they are different people– see ss 43 and 44 of the Act. He described it as understandable public policy that matters of concern under the Code can be referred for investigation by persons other than the consumer affected. But in his submission when it comes to proceedings in the Tribunal the position is clear. Parliament did not intend the class of those who could claim monetary compensation to be open-ended: it intended to restrict such claims to those consumers who have been directly affected.

[25]	During argument we were also referred to the discussion in the Parliamentary Debates at the time that the Act was passed, and in particular the observation by the Hon Katherine O’Regan that:

"Complaints Review Tribunal will have a very different role to that of disciplinary bodies. It will focus on whether there has been a breach of the Code and on the impact that breach may have had on the consumer" (Second reading, 27 September 1994 – emphasis added)

[26]	In Mr Hodson’s submission the reference to ‘consumer’ in this passage was deliberate and confirms that Parliament was concerned to provide compensation flowing from the impact of any contravention of the Code on the consumer, ‘ ... not on the world’.

[27]

Mr Hodson also drew support for his argument from s.52(2) of the Act, which provides that no damages can be awarded to a person who is covered under relevant accident compensation legislation. He submitted that it would be anomalous for persons who are not themselves physically injured to recover damages for a breach of the Code when the person who was physically injured, and who was the primary victim of the breach, cannot.

[28]

This submission gave rise to a good deal of debate between counsel as to whether the son in this case might have been able to bring proceedings in this Tribunal had he survived. On Mr Hodson’s analysis, the son or his estate would have had a claim under the relevant accident compensation legislation, and so would not be able to bring a claim for compensatory damages to this Tribunal. The Director, on the other hand, submitted that when fully analysed the son would not have been entitled to claim under relevant accident compensation legislation and so would have been entitled to bring a claim to the Tribunal. It is not necessary for us to decide which view is correct, because no claim is brought in this case on behalf of the son or his estate. The only real significance of the point was to reinforce Mr Hodson’s submission, namely that it would be inconsistent if a person who has been the victim of a personal injury by accident that is also a breach of the Code cannot bring a claim to the Tribunal for compensatory damages if others, who are not the primary victims of the breach, can.

[29]	Finally, although not referred to in argument, we note that the long title also makes clear that health consumers and disability services consumers are the first focus of the Act; and that s.6 provides:

"The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringments of those rights." (our emphasis; the reference to ‘those rights’ in context can only be a reference to the rights of consumers).

Discussion

[30]

Notwithstanding the persuasive submissions made on behalf of the defendant, we cannot ignore the fact that Parliament has used the words ‘aggrieved person’ in s.57, not the word ‘consumer’. This is so notwithstanding that Parliament took some care to define what is meant by a ‘health consumer’ (s.2 of the Act) and ‘consumer’ (cl.4 of the Code). In our view, if its intention had been to limit the class of persons who are able to claim compensatory damages, then s.57 would have said so. We are unable to find any convincing reasons why Parliament would have used the words ‘aggrieved person’ instead, unless its intention was to identify a wider class of potential claimants which encompasses but is not limited to ‘consumers’.

[31]	What might that class be? Who are we to regard as ‘aggrieved persons’ under s.57?

[32]	There are no authorities that are directly on point, but to establish what she submitted to be the natural and ordinary meaning of the words ‘aggrieved person’, the Director referred us to the following dictionary definitions:

[a]	‘aggrieved person’ - "A person adversely affected by the conduct or decision of another": (Butterworths New Zealand Law Dictionary, Spiller, 5th Ed, Wellington, 2001);

[b]

‘aggrieved’ - " ... having legal rights that are adversely affected, having been harmed by an infringement of legal rights" and ‘aggrieved party’ – "A party entitled to a remedy; especially a party whose personal, pecuniary, or property rights have been adversely affected by another’s actions or by a court’s decree or judgment:" (Black’s Law Dictionary, 8th ed, 2004); and

[c]	‘aggrieved’ – "Injured, having suffered injury or loss" and ‘aggrieved person’ – A person adversely affected:" (Dictionary of Canadian Law, 1991).

[33]

Some of these definitions are not incompatible with the approach advanced for the defendant, particularly those which connect grievence with those whose rights have been adversely affected. But overall we agree with the Director that in their ordinary sense, the words convey the idea of a person who has been adversely affected by the conduct of another. They do not of themselves signal that the class is limited only to those who are primary victims of the conduct in question.

[34]

Mr Hodson did not argue that in their ordinary sense the words ‘aggrieved person’ are not capable of meaning something more than a person whose rights have been infringed. His argument was that in the context of the Act and the Code the words can only have been intended to have the limited meaning of a ‘consumer’. As will be clear, we respectfully disagree. The purpose of the Act is to promote and protect the rights of health consumers. In our view, allowing for the possibility of claims for compensatory damages by those who are aggrieved by a breach of the Code - even if the claimant is not the consumer - is more consistent with the object of the legislation than it would be to exclude such claims (we accept, of course, that many of the concerns raised in Mr Hodson’s argument will need to be considered when it comes to fixing the amount of any award, but we see that as a different issue).

[35]

In her submissions the Director made reference to the history of the Act. It was she who drew our attention to the Parliamentary debate we have referred to at para [25] above, although she took the position that the passage referred to does not assist in the interpretation of the words ‘aggrieved person’. The Director informed us that there was no discussion in Parliament about the meaning of those words in either the Act or in the Human Rights Commission Act 1977 (on which the Act is said to have been modelled).

[36]

Although not part of her submission, we note that when the Act was passed in 1994 the Code had not been written. The Act gave the Health and Disability Commissioner responsibility for drafting the Code: see, e.g., ss.14(1)(a) and 19 of the Act. Part 4 of the Act (which contains the provisions in which the words ‘aggrieved person’ appear, including s.57) did not come into force until the Code had been finalised and was promulgated in July 1996. This raises the question of whether the use of the words ‘aggrieved person’ in the Act and the word ‘consumer’ in the Code may have been an oversight, caused by the fact that the two instruments were drafted at different times. However that seems unlikely since the word ‘consumer’ and the words ‘aggrieved person’ were all used in the Act when it was enacted. Furthermore the words ‘health consumer’ were defined in the Act at the outset. These circumstances seem to us to take much of the force from Mr Hodson’s argument that the repeated use of the word ‘consumer’ in the Code should be taken as effectively setting the limits of the Act. After all, the Code came after the Act, and those who framed it must be taken to have been aware of the way in which the Act had been worded.

[37]

As we have said, the Director informed us that the Act was modelled on the Human Rights Commission Act 1997. She therefore referred us to two decisions of this Tribunal in which the words ‘aggrieved person’ have been discussed, namely NZ Freedom from Discrimination Group v NZ Grand Lodge of Freemasons [1980] 2 NZAR 401 and Amaltal Fishing Company Ltd v Nelson Polytech [1996] NZCRT 1; [1996] NZAR 97. We find the following passages from the decision in the Freemason’s case particularly helpful (the decision was given by Mr JH Wallace (as he then was), His Honour Judge Brown and Ms P A Jefferies):

"Viewed in isolation from the Act, the term ‘aggrieved person’ is suseptible to both a wider and a narrower interpretation. In favour of a liberal interpretation, it can be said that it may in some instances be desirable to allow proceedings to be taken by persons who have suffered no direct or provable personal grievance, but are prepared to press forward with proceedings because they believe there is discrimination affecting the public generally. In favour of a more restrictive interpretation, it can be said that in other instances undesirable consequences of such proceedings are foreseeable where, for example, people who would generally be regarded as busybodies or as pursuing warped or groundless allegations wish to take proceedings. These competing arguments are reflected in the decided cases, in some of which the issue is posed as requiring a decision whether an aggrieved person must have a grievance which is in some way personal to him or greater than or different from that of the public generally. It is, however, difficult to state a precise test, and the recent authortites have tended to consider the question as one of fact in the context of the relevant legislation." (at pp 404 – 405)

"In our opinion the strong indication from a reading of all Sections of the Act where the words ‘aggrieved person’ appear is, ... that the aggrieved person must be one against whom a breach of the provisions of [the Act] has been committed, or alternatively a person identified with or in some way connected with those who suffer from the discriminatory practice." (at p 405)

"Whilst we are of the opinion that the term ‘the aggrieved person’ should not be defined or interpreted in an unduly restrictive manner (e.g., as a person who has suffered a strict legal or financial or other direct grievance) we are equally of the opinion that the term should not be so interpreted that it really means no more than ‘any person’." (at 406).

[38]

Of course the Freemason’s case was decided in respect of a discrimination claim which, at least arguably, involved issues that might be seen to extend beyond the interests of the parties in question (in this respect, see the recent discussion of the word ‘complainant’ in Child Poverty Action Group v Attorney-General HRRT Decision 28/05, 15 September 2005, although note that the decision is presently the subject of an appeal to the High Court). Whether that makes the situation much different from that which applies under the Act and the Code is open to debate. But, whatever view one takes of that issue, nonetheless it seems to us that at least two important propositions can be taken from the Freemasons case:

[a]

The first is that, in the end, the question of just who is and who is not an ‘aggrieved person’ is one of fact for the Tribunal to determine (see also Laws of New Zealand Part 11, para 107). It is neither necessary, nor in our view desirable, to try to formulate prescribed rules as to who might or might not fall within the class. For this reason we see Mr Hodson’s concern about having to evaluate whether (for example) only parents, siblings, relatives or any others can come within the class, as being misplaced. In each case the question is whether the facts establish that the person who is bringing the claim is aggrieved as a result of the healthcare provider’s breaches of the Code. That assessment has to be made in a common sense way on the evidence in the particular case, and having regard to the fact that while the claimant may be aggrieved, the words should not be read so widely as to allow anyone at all to bring a claim;

[b]

The second proposition of significance is that the Tribunal issued the Freemasons decision in 1980. We think that by adopting the same words some 14 years later when the Health and Disability Commissioner Act was passed, Parliament must be taken to have accepted the approach that had been adopted by the Tribunal in Freemasons.

[39]

The Director referred us to a number of other cases in which the words ‘aggrieved person’ have been considered in different contexts. Some of these are mentioned in the Tribunal’s decision in the Freemasons case and, since the way that they were discussed in that decision is consistent with our approach, we do not propose to analyse those authorities.

[40]

We were also referred to several authorites decided since 1980. In Edmonds Judd v Official Assignee [1999] NZCA 283; [2000] 2 NZLR 135 the Court of Appeal described the restrictive approach taken in Gay v Bruns (Unreported, CA 193/98 and 194/98, 17 June 1999) as running counter to a more liberal approach taken in other cases. The Court in Edmonds also observed that the broader view had been taken in recent judicial review, intellectual property and other areas of the law where the question had been raised (examples being Cook v Southend-on-Sea Borough Council [1990] 2 QB 1, Arsenal Football Club Limited v Smith (Valuation Officer) [1979] AC 1 and Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 128 ALR 238).

[41]	Although the words ‘aggrieved person’ in s.57 of the Act have not been the subject of any direct decision, cases that have been decided under the Act also seem to us to indicate that it would be wrong to treat the words as being restricted to ‘consumers’ only.

[42]

Director of Proceedings v O’Neil [2001] NZAR 59 concerned the conduct of a midwife in respect of the delivery of a baby who suffered severe brain damage during the birth, and later died. A claim was brought under the Act by the Director on behalf of the parents. The High Court held that the grief a parent feels on the death of a child can be a kind of injury to feeings within s.57(1)(c). An award of $20,000 that had been made in the Tribunal was confirmed (although the reasoning of the High Court differs from that of the Tribunal).

[43]

The situation in O’Neill is different from the present case, because the mother was clearly a ‘consumer’ of the midwife’s services in her own right. The point that the father was not an aggrieved person (because he was not himself a consumer of the midwife’s services) does not seem to have been taken. Even so, the decision in the High Court does consider the wording of s.57(1)(c) in some detail and is helpful as it makes the point that cases under the Act and the Code are different from any common law claims that exist (such as the claims at issue in Bryce v RHMU (supra) and van Soest (supra)). The decision also draws attention to the fact that the subject matter of an award under s.57(1)(c) is prescribed in that section, and is not nervous shock or psychiatric ilness, but humiliation, loss of dignity and injury to feelings.

[44]

One of the questions in O’Neill concerned a claim for a specific sum, namely the expenses for the baby’s funeral. The Court had no difficulty finding that the claim was within s.57(1)(a) of the Act. An issue in that respect related to the relevance of s.52(2) of the Act, which precludes any claim for damages under the Act in respect of personal injuries covered by the relevant accident compensation legislation. It was in that context that the Court said:

"The Director claims, not on behalf of the deceased but on behalf of the parents. Claims for expenses incurred subsequent to the death of that person, and paid by others do not in our view fall within this excluding provision. The provision simply precludes a person who is entitled to accident compensation, claiming damages (other than punitive damages) under the [Act]. It simply means there is to be no double payment. Because it is accepted that the parents have a claim under s57(1)(c) as they are persons ‘aggrieved’, it must also be the case that they are persons ‘aggrieved’ who have suffered pecuniary loss. There can be a clear distinction between a ‘person aggrieved’ and a person who has suffered personal injury." (at p 66, paragraph [20]).

[45]

We accept that the Court in O’Neil was not asked to consider the precise issue raised by this case. However the way in which the issues were dealt with tends to support our conclusion, namely that one does not have to be a ‘consumer’ under the Code in order to qualify as an ‘aggrieved person’ under the Act.

[46]	The same can be said of the decision in Harrild v Director of Proceedings [2003] NZCA 125; [2003] 3 NZLR 289, although we note that in her judgment Elias CJ observed:

"It is also necessary to emphasise that we are not able on the present appeal to express any views as to whether the damages sought are available or as to their quantification. There may be questions, for example, as to the appropriateness of the mother’s claim for recovery of wages for the period of her pregnancy and the father’s entitlement to damages. Matters such as these are in the first instance for the Human Rights Committee. They may yet give rise to some difficult questions of law, not able to be settled by this appeal."

[47]	We have concluded that the weight of authority as to the meaning of words such as ‘aggrieved person’ supports the prima facie right of the Director to bring the damages claims that she wishes to put forward in this case.

[48]

Furthermore, an interpretation of the words ‘aggrieved person’ which limits those who can bring a claim for damages under s.57 to ‘consumers’ and no-one else would be at odds with the all the authorites that emphasise that human rights-based legislation should be given a fair, large and liberal interpretation, rather than a technical or literal interpretation: see, for example, King-Ansell v Police [1979] 2 NZLR 531, Coburn v Human Rights Commission [1994] 3 NZLR 323, New Zealand Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100, Quilter v Attorney-General [1997] NZCA 207; (1997) 4 HRNZ 170 and Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc. [2002] NZCA 88; (2002) 6 HRNZ 713.

[49]	What of the ‘floodgates’ argument?

[50]	It has to be accepted that if the words ‘aggrieved person’ in s57(1)(c) extend to secondary victims then, without the guidance of a definition in the Act, the scope for claims by ‘non-consumers’ who feel aggrieved is potentially widened. However there are a number of other factors to consider.

[51]

Under the Act as it applied before 18 September 2004 the only person who had a right to bring proceedings to the Tribunal under the Act was the Director. Since 18 September 2004 it has been possible for an aggrieved person to commence a claim in the Tribunal if the Director declines or fails to take proceedings, but even in those cases a finding by the Health and Disability Commissioner that there has been a breach of the Code is a pre-requisite: see s.51 of the Act. Although cases before the Tribunal are heard de novo, this requirement operates as a considerable restriction on those who can claim to be an aggrieved person.

[52]

The Report of the Health and Disability Commissioner to the Minister of Health pursuant to s. 198(1) of the Crown Entities Act 2004 shows that in the year from 1 July 2004 to 30 June 2005 the Commissioner found that there had been a breach of the Code in 71 cases (although it is not altogether clear whether this represents 71 altogether unrelated matters, or whether some of the breaches were related). In the majority of cases where a breach was found, the Commissioner recommended the provider make an apology, and review his or her practices. There are no exact figures, but it seems that this must have been effective to achieve resolution in most cases. Only 14 or 15 cases were referred by the Commissioner to the Director for further consideration: see pp.15 and 31 of the Report. As a result the Director opened 18 files. Of those, it was decided to take no further action in 5 cases, 6 were still being considered at the time of reporting and there were 7 in which a hearing was either pending or had taken place. But those 7 matters include not only the cases brought to the Tribunal, but also those referred to relevant disciplinary bodies. The Report refers to only one matter (which involved two separate claims) that was actually dealt with by the Tribunal in the 2004/05 year.

[53]	To the best of our knowledge, since 18 September 2004 there have not been any cases brought to the Tribunal by an aggrieved person independently of the Director and in circumstances in which the Health and Disability Commissioner had found a breach of the Code.

[54]

We acknowledge that the figures taken from the Commissioner’s Report for the 2004/05 year represent a reduction from previous years, but the reality is that very few cases ever come to the Tribunal under the Act. Even accepting that the scope for such claims may be widened if proceedings can be brought by non-consumers who claim to be aggrieved, it is still very difficult to see that such a decision is going to do anything like open a floodgate. We also think it safe to assume that the interpretation for which the Director has argued has been her view and the view of the Commissioner throughout (certainly that is consistent with what is reported in both the O’Neil and Harrild cases). In that sense at least, a decision to endorse their interpretation is unlikely to make much difference to the status quo.

[55]

It is possible that there will be more claims from aggrieved persons acting on their own. But, as the Tribunal observed in Child Poverty Action Group v Attorney-General (supra) at para’s [87] to [92], there are practical disciplines at work as well. The conduct of any claim demands a real commitment in terms of time and attention. There is always a propsect of an adverse costs award if the claim is unsuccessful. In any event, the authorites make it clear that although the words ‘aggrieved person’ extend beyond those who are the primary victims, that does not involve opening the Tribunal’s door to the world.

[56]

In this case, the Director will have the burden of establishing that there is a sufficient connection between the alleged breach of the Code and the harm (to use a general word encompassing all of the different losses contemplated by s.57) suffered by the parents so as to justify a finding that the parents were aggrieved by the breach.

[57]	There are no hard and fast rules, but obviously the more distant the relationship between someone who has suffered at the hands of a health care provider and the person claiming to be aggrieved, then the more difficult it will be to establish a grievance which will justify an award of damages.

[58]

We mean no disrespect to the argument for the defendant, but in the context of proceedings under the Act which are brought to this Tribunal, we see the concerns about ‘opening the floodgates’ as being rather more illusory than real. Certainly we do not accept that any such concerns justify a restrictive interpretation of the words ‘aggrieved person’, which would be out of step with the apparent legislative intent as well as counter to the authorities we have referred to.

Decision

[59]	For the foregoing reasons we have concluded that the words ‘aggrieved person’ in s.57(1)(c) of the Act are not necessarily limited to the primary consumer of a health care provider’s services. They can encompass others as well. Whether they do so in any given case is a question of fact.

[60]	In our view the Director has an arguable claim for an award of damages. The defendant’s application is dismissed.

Consequences

[61]	The parties may agree to leave the issue of costs at this stage. In that case costs will be reserved to be dealt with after any substantive hearing. If there is no such agreement then costs will be dealt with according to the following timetable:

[a]	Any application for costs together with any supporting materials, to be filed and served by 31 January 2006;

[b]	Any memorandum and supporting materials in response, to be filed and served by 24 February 2006;

[c]	The Tribunal will then deal with the issue of costs on the basis of those papers, and without any further viva voce hearing.

[62]	Should the foregoing timetable be unacceptable to the parties, we reserve leave to apply for a variation. In that case we leave it to the Chairperson of the Tribunal to make any amendments to the timetable as may seem to him to be appropriate.

[63]	We ask the Secretary of the Tribunal to convene a telephone conference as soon as convenient for the purpose of timetabling further steps in the proceeding.

_______________ _______________ _______________
Mr R D C Hindle Ms P J Davies Ms J Binns
Chairperson Member Member