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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-706
[2020] NZHC 2743	

BETWEEN	ISOBEL SHAND
Appellant	
AND	ACCIDENT COMPENSATION CORPORATION
Respondent	

Hearing:	30 September 2020	
Counsel:	J P Miller for the Appellant
S M Bisley and M R Evans for the Respondent	
Judgment:	16 October 2020	

JUDGMENT OF CULL J

[1]	Ms Shand has had two kidney transplants and is a long-term renal patient.  Ms Shand’s second kidney transplant failed. She sought cover from the Accident Compensation Corporation (ACC) under the Accident Compensation Act 2001 (the Act) for treatment injuries and was declined.

[2]	Ms Shand now applies for special leave to appeal the District Court decision declining her cover for treatment injuries,1 which include cortical necrosis (the death of the outer part of the kidney) and an increased level of antibodies thus reducing her chances of a further transplant in the future. Ms Shand has applied for leave to appeal, which was refused by the District Court.2

1	Accident Compensation Act 2001, s 162(3); and Shand v Accident Compensation Corporation
[2018] NZACC 152 [Decision under appeal].
2	Section 162(2); and Shand v Accident Compensation Corporation [2019] NZACC 135 [Leave decision].

SHAND v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 2743 [16 October 2020]

[3]	Special leave to appeal is sought on the following questions of law:

(a)	Did the District Court err in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(c) of the Act (the decision on the treatment to be provided) following Adlam v Accident Compensation Corporation?3

(b)	Did the District Court err in its interpretation of what constitutes a sufficient departure from a standard under s 33(1)(e) of the Act (obtaining informed consent) following Adlam?

(c)	Did the District Court err in finding that a specific cause of cortical necrosis had to be identified under s 33(1)(a) of the Act (the giving of treatment) if the injury occurred within a constant state of hospital treatment?

Background

[4]	Ms Shand was 11 years old when she received her first kidney transplant. This kidney functioned well for a time but slowly failed, necessitating a return to haemodialysis (the use of a dialysis machine) in 1999.

[5]	Eight years later, in April 2007, Ms Shand underwent her second kidney transplant, which is the subject of this special leave to appeal hearing. This transplant failed due to cortical necrosis. This means the death of tissue in the outer part of the kidney. As a result, Ms Shand’s immune system was sensitised, with increased antibody levels reducing her chances of  finding  a  suitable  donor  in  the  future. Ms Shand needs ongoing dialysis.

[6]	On 1 October 2014 Ms Shand sought cover from ACC for a treatment injury. The claim form stated:

Renal transplant: kidney rejected immediately after surgery, due to inappropriate kidney and damage during surgery.

3	Adlam v Accident Compensation Corporation [2017] NZCA 457, [2018] 2 NZLR 102.

Under the heading “signs and symptoms of the injury” it stated:

… Reduced chance of successful access to future organ donation as now has antibodies.

[7]	ACC investigated the claim, obtaining reports from specialists and the treating medical persons about the failure of the kidney transplant and also on the issue of informed consent at the time of the surgery. In June 2015 ACC declined cover, because:

(a)	the decision to use the donor kidney was reasonable and appropriate;

(b)	the treatment provided was of a reasonable and appropriate standard;

(c)	the failure of the donor kidney was not caused by treatment factors, with the expert’s opinion stating that the cortical necrosis was either caused by the donor kidney or from cold storage of the kidney; and

(d)	there was no failure to obtain informed consent.

[8]	ACC confirmed its decision would not be revised and Ms Shand’s claim was referred to review, which upheld ACC’s decision. Ms Shand appealed the review decision to the District Court, in which she sought cover for the following three treatment injuries:4

(a)	the transplant surgery, because she did not give informed consent to treatment;

(b)	the cortical necrosis; and

(c)	the increased antibody levels.

The District Court dismissed her appeal and is the decision upon which Ms Shand now seeks special leave to appeal to this Court.

4	Decision under appeal, above n 1, at [8].

The Accident Compensation Act

[9]	Cover is available for personal injury that is “treatment injury” suffered by the person.5 Section 32 of the Act defines treatment injury as personal injury that is:

(a)	suffered by a person seeking or receiving treatment from registered health professionals;6 and

(b)	caused by treatment;7 and

(c)	not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances, including the person’s underlying health condition and the clinical knowledge at the time of treatment.8

[10]	Treatment injury does not include personal injury that is wholly or substantially caused by a person’s underlying health condition, that is solely attributable to a resource allocation decision, or that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.9 The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.10

[11]	Section 33 then deals with the definition of treatment:

33	Treatment
(1)	For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a)	the giving of treatment:
(b)	a diagnosis of a person’s medical condition:
(c)	a decision on the treatment to be provided (including a decision not to provide treatment):
(d)	a failure to provide treatment, or to provide treatment in a timely manner:
(e)	obtaining, or failing to obtain, a person’s consent to undergo

5	Accident Compensation Act, s 20(2)(b).
6	Section 32(1)(a).
7	Section 32(1)(b).
8	Section 32(1)(c).
9	Section 32(2).
10	Section 32(3).

treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment:
(f)	the provision of prophylaxis:
(g)	the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently:
(h)	the application of any support systems, including policies, processes, practices, and administrative systems, that—
(i)	are used by the organisation or person providing the treatment; and
(ii)	directly support the treatment.
…
[Emphasis added]

[12]	The Court of Appeal in Adlam ruled on how ss 32 and 33 were to be applied to ascertain whether a person has suffered a treatment injury.11

[40]	The drafting of ss 32 and 33 means that both must be applied together for the purpose of ascertaining whether a person has suffered a treatment injury. A treatment injury must involve some act or omission that has a causative effect in producing the personal injury.

[41]	Once an event has occurred that can properly be considered as within one of the paragraphs in s 33(1), it must then be asked whether that event has given rise to a personal injury that qualifies as a treatment injury under s 32(1). And the requirements of s 32(1) are cumulative in the sense that all must be satisfied for there to be a treatment injury. Thus it is not enough for this to be established by pointing to a personal injury that a person has suffered while receiving treatment. It must also be shown that the personal injury has been caused by treatment. Then it must be demonstrated that the injury was not a necessary part or ordinary consequence of the treatment taking into account all the circumstances in which the treatment has occurred.

[13]	The Court of Appeal held that a treatment injury occurs where there has been some departure from a standard and that departure has caused a personal injury:12

[62] Taken as a whole the provisions indicate a legislative intent to limit cover for persons who suffer injury while undergoing treatment, rather than

11	Adlam, above n 3.
12	Though the Court was specifically talking about treatment injury under s 33(1)(b) to (d), the same reasoning applies to s 33(1)(e).

providing cover for all those who suffer. The injury said to be a treatment injury must be the consequence of a departure from appropriate treatment choices and treatment actions. The drafting could have simply provided for cover for all injury suffered while a person undergoes treatment. But that course was not taken. Rather, boundaries were set out that have the effect of limiting the availability of cover for injury during treatment. A failure in the sense of omitting to take a step required by an objective standard is necessary.

The District Court’s decision

[14]	There were three issues for determination in the District Court. The first was whether Ms Shand provided informed consent to the treatment.13 The Judge concluded that Ms Shand was provided  with information at the relevant time by    Dr Matheson that the donor kidney was marginal due to its size; that it  had  the  New Zealand Kidney Allocation Scheme (NZKAS) categorisation of five; the degree of negative cross-match; and therefore it  may not work.14    The Judge found that    Dr Matheson had communicated that the Auckland Transplant Centre had rejected the kidney and Ms Shand was given sufficient information to alert her to the significance of the anticipated risks and benefits.

[15]	In addition, the Judge found that Ms Shand understood that her body might reject the kidney and that she would be further sensitised. Thus, although there was a reasonable chance of success, it was not without risk.15 Ms Shand had an opportunity to discuss matters with her renal physicians in her home area as well. The Judge concluded there was no failure to convey sufficient information of the material benefits and risks of the proposed treatment to Ms Shand and she was satisfied there was no departure from a proper standard of care.16

[16]	The second issue was causation, namely whether the cortical necrosis, or the death of the outer tissue of the kidney, was caused by the decision to provide treatment.17 The Judge traversed the evidence on the transplant surgery itself and the

13	Accident Compensation Act, s 33(1)(e).
14	Decision under appeal, above n 1, at [111].
15	At [111].
16	At [113]
17 Accident Compensation Act, ss 33(1)(c) and 32(1)(b). It appears Counsel and  the  Judge approached this issue on whether the cortical necrosis was caused by the decision to provide treatment under s 33(1)(c), as opposed to the giving of treatment itself under s 33(1)(a) (which is how it was approached before me).

events following the surgery.18 She concluded that the surgery went well but post- surgery scans showed poor blood flow to the lateral portion of the kidney, which ultimately suffered from cortical necrosis.19 As a result, the kidney never functioned sufficiently well to render Ms Shand free from dialysis and the transplant was classified as a technical failure.

[17]	The Judge concluded that under s 32(1)(b) of the Act, she was not satisfied that on the evidence before her the cortical necrosis was caused by the decision to provide treatment.20 The personal injury must be shown to have been caused by the treatment for s 32(1)(b) to be satisfied and risk of causation does not suffice.

[18]	The third issue was whether the increased antibody levels were an ordinary consequence of treatment.21 It was accepted that the increased antibody levels were a physical injury that was caused by the transplant surgery.22 On an assessment of the authorities,23 the Judge stated that the question is not whether a particular outcome is ordinary for patients generally, but whether it is ordinary for that particular patient, in that particular set of circumstances and in the light of proper standards of treatment.24 The Judge concluded that the increased antibody levels were an ordinary consequence of the treatment, occurring in almost all cases of kidney transplants, and cannot be avoided, only controlled.25 The increased antibody levels were a necessary part or ordinary consequence of proper treatment.

[19]	The appeal was dismissed.

[20]	As noted, Ms Shand applied for leave to appeal that decision.26 The District Court concluded that the Judge had found as a matter of fact that Ms Shand was provided with sufficient information to give her informed consent under s 33(1)(e),27

18	Decision under appeal, above n 1, at [114]-[135].
19	At [116]-[135].
20	At [156]-[158].
21	Accident Compensation Act, ss 32(1)(c) and 33(1)(a).
22	Decision under appeal, above n 1, at [162].
23	McEnteer v Accident Compensation Corporation [2010] NZCA 126; Muirhead v Accident Compensation Corporation [2016] NZACC 272 at [18]; and Adlam, above n 3, at [48].
24	Decision under appeal, above n 1, at [164]-[167].
25	At [170]-[172].
26	Leave decision, above n 2.
27	At [18].

and the correct decision on the treatment to be provided was made and no treatment injury could result under s 33(1)(c).28 The exact cause of the failure of the kidney was unknown and there  was  no  evidence  that  it  was  caused  by the  treatment  under s 32(1)(b).29 There was no error of law and leave to appeal was therefore declined.

Special leave to appeal on a question of law

[21]	Ms Shand now seeks special leave to appeal to the High Court on a question of law.30 The Act permits an appeal on a question of law only.  What amounts to a question of law was considered by the Supreme Court in Bryson v Three Foot Six Ltd, where the Court warned that there is no question of law where the correct law has been applied to the facts:31
[25]  An appeal cannot however be said to be on a question of law where   the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly unsupportable.

[22]	To obtain special leave, Ms Shand must identify a question of law that is also capable of bona fide and serious argument,32 and the Court must consider whether there is a question of sufficient public or private interest to outweigh the cost and delay of a further appeal.33 The alleged error must have materially affected the decision under challenge.34 Even if the threshold test is satisfied, the granting of special leave involves the exercise of a discretion.35 The Court of Appeal put the position succinctly in Cullen v Accident Compensation Corporation:36

[5] …The Court will exercise this power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost

28	At [25].
29	At [33].
30	Accident Compensation Act, s 162(3).
31	Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
32	Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5]; and Gaskin v Accident Compensation Corporation [2018] NZHC 3190 at [34].
33	Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [5] and [29]; and Gaskin, above n 32, at [34].
34	Van Helmond v Accident Compensation Corporation [2014] NZHC 2750 at [12].
35	Howard v Accident Compensation Corporation [2018] NZHC 3342 at [3].
36	Cullen, above n 32 (footnotes omitted).

and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.

[23]	This Court must determine whether there is an issue of law which crosses the threshold of arguability and which has appropriate significance.37

Assessment

[24]	This application involves three issues, which are said to be seriously arguable questions of law.38 I deal with each in turn.

What constitutes a “sufficient departure” from a standard under s 33(1)(c)?

[25]	The first issue concerns the treatment decision under s 33(1)(c) and what constitutes a sufficient departure from a standard under that section.

[26]	Section 33(1)(c) provides that “treatment” includes “a decision on the treatment to be provided”. Mr Miller for Ms Shand submits that any factual finding on whether a standard has been sufficiently departed from in a decision to provide treatment under s 33(1)(c) depends on the legal interpretation of the Adlam “standard of departure”. This, he says, is a question of law capable of bona fide and serious argument.

[27]	Mr Miller submits that the decision to implant a single kidney with a NZKAS score of five was against the recommended New Zealand protocol at the time. Scores of one to three mean the kidney is acceptable to use as a single kidney. Scores of four to six mean that both deceased’s donor kidneys should be offered to a single recipient. He argues that using the single donor kidney with a score of five constituted a relatively marginal departure or slight clinical indication of an alternative course that should have been taken, and is sufficient to constitute a “departure from a standard” under s 33(1)(c).

37	Accident Compensation Corporation v Hawke [2013] NZHC 2982 at [24]; and Adlam v Accident Compensation Corporation [2016] NZHC 1967 at [17].
38	See [3] of this judgment.

[28]	Mr Miller submits therefore the “bona fide and serious argument” is that the District Court Judge, in concluding that because no specialist argued that there was a breach of a standard and there was “no evidence” before her of a standard and departure from it, misinterpreted the level of departure required for s 33(1)(c).

[29]	I consider that the legal issues raised under this ground have been answered by the Court of Appeal in Adlam.   The Court defined the nature of a departure under     s 33(1)(c) as follows:

[48]	We consider next s 33(1)(c). This refers to a decision on the treatment to be provided. Once again, we think the statute must have in contemplation an incorrect decision as to the treatment to be provided. …

[49]	… this provision turns on the correctness of the decision on the treatment to be provided and that necessarily incorporates a standard. If the right decision on the treatment to be provided is made, that decision will not be the cause of any personal injury that results.

[30]	A departure from a standard under s 33(1)(c) must require an alternative decision on treatment to not only have been possible, but to have been the decision that the treating medical practitioners should in fact have made.39 This requires a factual assessment of what was clinically indicated, based on the information available to the treating medical practitioners at the time of their decision.

[31]	Applying this approach, the District Court Judge found as a matter of fact that Ms Shand had not adduced any evidence to show that the decision to provide treatment was a departure from a standard of treatment. The Judge found that the evidence relating to the NZKAS score of five refers to a “general agreement by the kidney transplant groups”, but under the New Zealand kidney donor scheme criteria, the kidney was suitable to be used in the way it was.40 There was therefore no departure from a standard, in that a different decision should have been made. I accept ACC’s submission that the Judge’s factual finding is not amenable to appeal.

[32]	Furthermore, Ms Shand faces an evidential problem in my view. In contending that there has been a departure from the NZKAS “standard” by using a kidney with a score of five, a later microscopic examination scored the donor kidney at three.

39	Adlam, above n 3, at [61].
40	Decision under appeal, above n 1, at [90]-[91].

Although Mr Miller argues that the decision on providing a treatment should be assessed at the time the kidney was offered, it does not make logical sense that, in assessing whether this was a departure from a standard, the donor kidney should now be considered on the initial score of five, when in reality it was three. If it had been known to have a score of three at the time, there would have been no argument that the treating team should have offered Ms Shand this treatment.

[33]	I cannot accept Mr Miller’s submission, therefore, that the alternative course that should have been followed was to follow the NZKAS protocol and not proceed with the transplant of the donor kidney. In the opinion of Mr Voss, the medical renal expert, if the clinicians had reached a different view on the acceptability of the donor kidney and had not offered it to Ms Shand, that would have been irresponsible and would have constituted a failure to provide treatment to Ms Shand.

[34]	Finally, the Court of Appeal in Adlam considered and rejected the proposition, as submitted by Mr Miller, that the assessment of an alternative course that should have been followed is simply a hindsight view of an available alternative course.41 The alternative decision must be one that was both available and should have been made, based on the information at the time of the decision.42 Here, the alternative decision was not to proceed with the transplant, and the Judge accepted the expert medical evidence that not to offer Ms Shand the kidney would have been irresponsible.

[35]	I can find no error in the Judge’s approach. There is therefore no question of law requiring determination in respect of this issue.

What constitutes a “sufficient departure” from a standard under s 33(1)(e)?

[36]	The second issue concerns informed consent under s 33(1)(e). Section 33(1)(e) provides that “treatment” includes:

obtaining, or failing to obtain, a person’s consent to undergo treatment, including any information provided to the person … to enable the person to make an informed decision on whether to accept treatment.

41	Adlam, above n 3, at [66].
42	At [61].

[37]	Mr Miller submits that similar considerations apply on “sufficient departure” from a standard to the issue of informed consent. He submits a relatively marginal departure or minor indication that more information should have been given will arguably suffice. He stresses that in the circumstances of a life-changing operation with significant consequences for failure and requiring an instant decision, it is “a clearly arguable point of law” that the highest levels of information should be required to ensure all negative aspects are fully understood.

[38]	Further, Mr Miller submits that the Judge relied on negligence and tort cases,43 when Adlam introduced a lesser test or requirement for informed consent.44 He submits the Adlam test on informed consent is satisfied where a medical professional may fail to impart information which could and should have been provided, even if there is no negligence in the level of information provided. Mr Miller submits the boundaries of this lesser standard remain undefined following Adlam, and it is arguable that s 33(1)(e) could apply where, as here, adequate information was not completely provided.

[39]	In the District Court, the Judge found that Dr Matheson did not have “a duty to bombard” Ms Shand with technical information. The duty was to ensure the information was comprehensible, and in a context where time was an important consideration if Ms Shand was to accept the kidney offered. The Judge then made a factual finding that Ms Shand had been sufficiently informed of the material benefits and risks of the transplant, and no departure from a proper standard of care had occurred.45

[40]	Drawing on the principles from Rogers v Whitaker, which held that medical practitioners are not required to inform the patient of every conceivable risk,46 the Judge concluded Ms Shand gave her informed consent to the treatment.47 In applying the legal test to informed consent, the Judge drew not only from Rogers, but also B v

43	Decision under appeal, above n 1, at [35]-[42].
44	Mr Miller submits Adlam introduced a non-negligent test for departure from a standard across the treatment injury provisions.
45	Decision under appeal, above n 1, at [110].
46	Rogers v Whitaker [1992] HCA 58, [1992] 175 CLR 479, adopted by the New Zealand High Court in B v Medical Council of New Zealand HC Auckland 11/96, 8 July 1996.
47	Decision under appeal, above n 1, at [112]-[113].

the Medical Council of New Zealand,48 the Court of Appeal decision in Accident Compensation Corporation v Ambros49 and the United Kingdom’s Supreme Court decision in Montgomery v Lanarkshire Health Board,50 the latter authority of which was relied on by Mr Miller. The Judge concluded from those authorities that a medical practitioner does not have an obligation to inform of every conceivable risk or technical detail which a patient cannot be expected to understand.51 A failure to obtain informed consent requires a departure from a proper standard of care, namely the provision of sufficient information about the benefits and risks of treatment.52

[41]	I do not uphold Mr Miller’s submission that the Judge applied the wrong legal test following Adlam.53 Mr Miller asserts that the lesser test in Adlam indicates that a marginal departure, or minor indication that more information should have been given, will arguably suffice. What constitutes a departure from sufficient or material information for informed consent is well-settled by the authorities. Adlam does not affect the position. The Judge applied the correct law to the facts.

[42]	I accept Mr Bisley’s submission for ACC that what information is “material” to informed consent is a question of fact for the fact-finding court. For completeness, however, I agree with the Judge’s application of the law to the facts. The Judge made extensive findings of fact, analysing each of the conversations, medical notes and advice to Ms Shand and concluded that there was no failure to convey sufficient information to Ms Shand, who made an informed decision to accept the kidney. Of the three items which Mr Miller submits were not provided to Ms Shand, I consider the Judge’s finding that “Dr Matheson did not have a duty to bombard Ms Shand with technical information” applies to two of those items.

[43]	The first is that Ms Shand was not advised that the donor kidney had a score of five. In Dr Matheson’s notes, he records that he told Ms Shand that the kidney was “a marginal donor on biopsy features” and that the transplant may not work, but he thought there was a reasonable chance of success. The Judge accepted that Ms Shand

48	B, above n 46.
49	Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
50	Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430.
51	Decision under appeal, above n 1, at [42].
52	At [42].
53	Adlam, above n 3.

was appropriately advised of the risks and I consider the actual score of the donor kidney was not a material fact in the circumstances, particularly in light of the subsequent score of three. The second alleged omission is that Ms Shand was not told that two transplant centres had rejected the kidney. Dr Matheson had told Ms Shand that the kidney had been rejected from Auckland. Neither he nor the other clinicians knew that Christchurch also had rejected the kidney when they gave Ms Shand the information. A doctor cannot give information which he does not know.

[44]	The third item is that Ms Shand was not told that if this transplant failed, she would not likely get another kidney match. Again, on the facts as found by the Judge and from the medical notes and evidence relied upon, it is plain that Ms Shand was advised of the risks. Indeed, given that this was the second kidney transplant operation, I accept Mr Bisley’s submission that Ms Shand would have been very aware of the inherent risks of transplant surgery.

[45]	The patient must be given sufficient information of the anticipated benefits and risks of the proposed treatment so she can consider options and make an informed decision.54 Failure to obtain informed consent requires a departure from a proper standard of care, namely the provision of sufficient information about the benefits and risks of treatment.55

[46]	I find that there was no error in the Judge’s approach. She applied the correct legal test to the facts. There is therefore no question of law that is capable of a bona fide and serious argument on the issue of informed consent in this case.

Does a specific cause of the injury need to be identified?

[47]	The third issue is whether the specific cause of cortical necrosis needed to be identified under ss 33(1)(a) and 32(b). There was no dispute among the medical professionals that the kidney transplant resulted in the physical injuries of cortical necrosis and an increase in antibodies.56 However, the Judge found that there was

54	Montgomery, above n 50, at [87].
55	Decision under appeal, above n 1, at [42].
56	At [133].

insufficient medical evidence to support a conclusion that the cortical necrosis was caused by the treatment.57

[48]	Mr Miller submits that even if the exact cause of the cortical necrosis was unknown, it appeared on the balance of probabilities to be one of a finite number of treatment-related causes, for example, the donor kidney’s pre-transplant state, any biopsy damage, or from cold storage of the kidney. Thus, he submits, it was a robust scientific likelihood that the overall treatment component caused the kidney damage and it is capable of serious and bona fide argument that it is not necessary to pinpoint the specific cause.58

[49]	Mr Bisley for ACC in reply submits that s 32(1)(b) of the Act requires a specific cause of injury for cover to be granted. That cause must be treatment of some kind, as defined in s 33(1). However, he submits that the Judge found that the evidence establishes potential causes of Ms Shand’s injuries that include pre-existing issues with the transplant kidney itself, which do not constitute treatment.

[50]	Under s 33(1)(a), “treatment” includes “the giving of treatment”. That is, the surgery itself. Under s 32(1)(b), the injury must be caused by that treatment. As has been set out above,59  the Court of Appeal  in Adlam held that the requirements of      s 32(1) are cumulative and that they all must be satisfied for there to be a treatment injury. In terms of s 32(1)(b), the Court drew a distinction between a person who has suffered personal injury while receiving treatment and where the personal injury has been caused by treatment. It is the latter which must be established.

[51]	In this case, the Judge found the cause of the cortical necrosis was uncertain. On the balance of probabilities, the Judge found that the surgery went to plan but the kidney did not function, potentially as a result of damage within the kidney itself, events in the deceased donor, or occurrences during the cold storage of the donor kidney. The Judge, in referring to the authorities on causation, held that causative treatment must be clearly identified and that each case requires determination in light

57	At [141]-[158].
58	Relying on Watts v ARCIC [1998] NZACC 193.
59	See [12] of this judgment, citing Adlam, above n 3, at [13].

of the specific facts, namely whether the treatment was causative or merely incidental to the personal injury.60 Referring specifically to Ambros and to Adlam, the Judge concluded that while the Court can draw “robust” inferences as to causation in individual cases, there must be sufficient material pointing to proof of causation, on a balance of probabilities, for the Court to do so.61 Risk of causation does not suffice.62

[52]	In light of the appellant authorities, which the Judge applied to the issue of causation, I am unable to find that the Judge was in error. Mr Miller’s submission seeks an alternative determination by this Court as to whether treatment can include all circumstances surrounding the transplant surgery, including biopsy damage, the pre-transplant state of the kidney and its storage. Mr Miller relied on Watts v ARCIC, in which the contraction of meningitis by a newborn in a neonatal incubator was held to have been injury sustained in a state of treatment.63

[53]	However, Watts can be distinguished from Ms Shand’s case on the facts. In Watts, the claimant was in a constant state of treatment for the relevant period and the environment in which the treatment was occurring was a part of that treatment. Other cases following that authority have similar facts.64  In contrast, Ms Shand was not in a constant state of “treatment” under s 33(1)(a), when all the potential causes of her injuries were said to occur. As explained, “treatment” under s 33(1)(a) is “the giving of treatment”. Under s 32(1)(b), the injury must be caused by that treatment. As explained, not all of the identified potential causes of the cortical necrosis were caused by the treatment given, that is, the surgery itself. In this case, a robust finding on causation cannot be made.

[54]	For completeness, and because Mr Miller submitted on this point on the basis that “treatment” is also the decision to provide treatment under s 33(1)(c), I reiterate that the decision to provide treatment under that section must be an incorrect

60	Decision under appeal, above n 1, at [143].
61	At [144], citing Adlam, above n 3, at [14] and Ambros, above n 49, at [65]-[70].
62	Ambros, above n 49, at [65]-[70].
63	Watts v ARCIC, above n 58.
64 See, for example, other cases concerning children being treated during and following birth:  Roborgh v Accident Compensation Corporation HC Wellington CIV-2003-485-1477, 27 April 2004, Crampton v Accident Compensation Corporation [2013] NZACC 182, Felton v Accident Compensation Corporation [2013] NZACC 226, and more recently Osborn v Accident Compensation Corporation [2018] NZACC 82 at [29].

decision.65 For the reasons already canvassed under the first issue, I agree with the District Court Judge that the decision to offer the kidney transplant to Ms Shand was the correct decision in these circumstances. Therefore, there is no “treatment” under s 33(1)(c), and no issue of causation under s 32 arises.

[55]	I find no error in the Judge’s approach. This issue does not raise any seriously arguable question of law.

[56]	There is one further matter upon which I wish to make an observation. It was not critical to the Judge’s finding on causation but was an expression of opinion that the treatment was caused by Ms Shand’s decision to accept the kidney. The Judge says:66
All treatment given after Ms Shand’s decision [to accept the kidney] was caused by that decision. The decision which I have found was properly informed, was not treatment given by a medical professional.

[57]	I find that opinion troubling. The decision to provide treatment was a proper one reached by the clinical team. Ms Shand consented to that treatment. This does not mean that treatment was not given by a medical professional. For the same reason, I reject ACC’s submission that the operative cause of failure was Ms Shand’s decision to accept the kidney. I consider this stretches the language of ss 32 and 33 too far and, taken to its logical conclusion, would mean every patient who consents to the provision of treatment would be accepting that the treatment was not given by the medical professional offering it. Any such conclusion is both factually and legally unsustainable.

65	Adlam, above n 3, at [48]-[49].
66	Decision under appeal, above n 1, at [154].

Result

[58]	The application for special leave to appeal is declined.

Cull J
Solicitors:
John Miller Law, Wellington for the Appellant Buddle Findlay, Wellington for the Respondent