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Teen granted leave to appeal ACC decision following delay in treatment

25 Aug 2023

| Author: Jamie Dierick

Accident Compensation Act 2001 – application for cover for treatment injury – application denied – special leave based on a question of law – application of Accident Compensation Corporation v Ambros – whether the delay in treatment caused the injury – special leave granted to determine whether delay caused the injuries  

AR v Accident Compensation Corporation [2023] NZCA 354 per Gilbert and Mallon JJ.

 

AR became unwell while on holiday in January 2017. He was 15.

His mother contacted an out-of-hours medical centre helpline. Due to incorrect medical advice through the helpline, there was a delay of seven-and-a-half to eight hours before a diagnosis of, and in-hospital treatment for, Guillain-Barré Syndrome (GBS) was received.

AR remained in intensive care on a ventilator for three months.

AR suffers severe effects from GBS and requires help with all his daily activities. He may improve in the next two or three years but some residual disabilities may remain.

The applicant sought cover from ACC for treatment injury as a result of the delay in treatment. ACC denied the claim on the basis the delay did not cause GBS or increase the severity of it.

ACC’s decision was upheld on review and on appeal to the District Court.

The appeal to the High Court on a question of law was dismissed. AR then applied for special leave to go to the Court of Appeal.

Special leave can be granted if there is a question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

The Court of Appeal decided the District Court approach looked for certainty in the medical literature or relied on the opinions of two doctors who were looking for certainty in the medical literature, and that the delay in treatment was likely to have caused an increase in the severity of the applicant’s symptoms.

 

Applicable principles:  treatment injury – Ambros test for causation of injuries as a result of treatment (or failure to treat) – special leave on the question of law – high public interest outweighing cost and delay.

 

Held: The application for leave to appeal was granted on the following question of law: whether the High Court misdirected itself on the application of Ambros by misapplying the relevant factors or overlooking relevant factors in assessing whether the claimant had proved, on the balance of probabilities, the delay in treatment caused him personal injury additional to the injuries he would otherwise have suffered because of his Guillain-Barré Syndrome.

 

Jamie Dierick is a law clerk for an Auckland criminal defence barrister.

 

AR v Accident Compensation Corporation [2023] NZCA 354.

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