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A C C V Newstead (310/2004) Causal nexus to need for surgery

#1 User is offline   ernie 

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Posted 05 November 2004 - 11:30 AM


District Court, Wellington (310/2004), 29 September 2004
Judge J Cadenhead


H. A. Evan for Appellant
M. Gibson, for Respondent


The Issue

[1] The issue in this case is whether or not the respondent can show on a probability basis that the accident that occurred is responsible for her present condition for which she is claiming an entitlement to surgery.

The Background of Facts

[2] The respondent has an unusual neuromuscular dysfunction. Her claim arises from an event when she fell from her wheelchair on 5 February 1997.

[3] The respondent has no recollection of the accident, and has been unable to shed any light on the incident itself.

[4] The appellant granted cover for concussion and a sprain/strain to her right wrist.

[5] By a letter of 29 July 2003, Mr Chin, consultant orthopaedic surgeon, requested that the appellant fund an arthrodesis of the right wrist, because the wrist orthosis was rubbing and causing recurrent cellulitis in that area.

[6] In’ a letter dated 25 September 2003, the appellant wrote to Mr Chin and requested further clarification of the causal connection between the surgery and the injury sustained.

[7] In his latest letter dated 17 February 2004, Mr Chin states:
”From my understanding of the situation from information from letters from Mr Swan, and notes from Professor Gorman who had subsequently assessed her, and from testimony from Jenny herself she had a fall from her wheelchair on the 5th of February 1997 and seemed to have suffered concussion. Following this she had noted she had lost power of her right wrist and hand. The exact nature of the lesion is difficult to characterize but it is probable that it relates to her head injury. Her pre-existing incomplete tetraplegia is a significant factor.

With regard to Jenny’s current problems it is apparent to me in my assessment that her current function is limited significantly by her flail right wrist and that surgery to fuse her right wrist in a more functional position will rnaximize her upper limb function. ”

[8] In a letter dated 9 September 2003, Mr Chin stated that the respondent had a syndrome of unusual neuromuscular dysfunction which has been characterised as a reflex sympathetic motor dystrophy in which she has an effective but incomplete tetraplegia. Seven years ago she had an injury when she suffered a head injury. Following this she had apparently lost function in her right arm, and in particular developed a flail right wrist. She was treated by Mr Swan at this time, who treated her expectantly with the use of wrist supports in the hope that she would make some recovery. This has not occurred. She remains with a flail wrist.

[9] Mr Chin said the exact basis for the respondent’s flail wrist was not clear, however, it had now been seven years and she was reliant on orthoses for support of the right wrist to allow her to use it.

[10] On 25 September 2003, the appellant declined to pay for the arthrodesis to the right wrist on the basis that the need for surgery and the direct link to a covered personal injury did not meet the requisite standard to the balance of probabilities.

[11] The respondent appealed against this decision, and the review officer, in a decision dated 22 March 2004, quashed the appellant’s decision, and directed it to provide the treatment sought on the respondent’s behalf.

[12] In his reasons, the review officer correctly identified the central issue as one of causation. The review officer said that it was well settled that the onus lay upon the respondent to establish on the balance of probabilities that the need for the surgery requested related to the injury for her right wrist for which the respondent had an accepted claim for cover. The review officer noted that in determining this type of issue, the medical evidence was important, and that that medica1 evidence established:
1. The respondent had a long-standing neurological dysfunction.
2. The respondent developed a right wrist drop in 1997 following a fall from her wheelchair, and
3. That the respondent had not regained function in her wrist since 1997.
4. Specialists were unable to identify a clinical explanation for the respondent’s loss of function.

[13] The review officer traversed the medical reports of Mr Swan, Professor Gorman and Mr Chin.

[14] The review officer said that Mr Chin in making his observations, was doing no more than repeating the existing uncertainties expressed by both Mr Swan and Professor Gorman.

[15] The review officer said:
”Mr Chin was asked to comment on the relationship between the 1997 accident and the present need for surgery. Mr Chin states that the flail wrist or wrist drop developed at the time of the incident in 1997. Ms Newstead has not regained function since that time. The mechanism of injury is unclear but it is superimposed on a complex neurological picture. Mr Chin stated to ACC that ’it is my impression that this problem did stem from the accident as outlined by Jenny’. ”

[16] The reviewer said that Mr Chin’s opinion mirrored the earlier statements of Mr Swan and Professor Gorman.

[17] In a report dated 28 September 1998, Mr Swan stated:
”While I am unable to comment on the mechanism whereby the injury caused an increased to her right arm weakness, there is a temporal relationship between the onset of increased weakness and the injury and, as the whole complex syndrome is not well understood, I feel that she should be given the benefit of the doubt that the injury contributed at least to her right arm weakness and that this weakness is therefore the responsibility of the ACC. ”

[18] Professor Gorman in a report dated 25 February 1999 stated that he believed it is an inescapable conclusion that her problems are post-traumatic and hence compensable.

[19] The reviewer said a11 the specialists who have examined Ms Newstead consider that it is more likely than not that the accident played a part in the development of her right wrist drop. No other explanation for the right wrist drop has been offered by ACC.

[20] The conclusion of the reviewer was that the respondent developed a drop wrist in 1997 at the time she fell from her wheelchair. She had not recovered function in that wrist. The specialist who had examined her considered that it was likely that the fall was the cause of the wrist drop and claim with a complex neurologica1 condition.

[21] In the view of the reviewer the relationship between the right wrist drop and the current need for surgery had been established on the balance of probabilities.

[22] For those reasons he quashed the ACC decision of 25 September 2003.

Legal Principles

[23] In a recent High Court decision Cochrane (CIV 2003 – 485-2099 Wellington 2 June 2004) Justice Miller said, while confronting a causation issue under the 1982 Act.
”The question ought to have been whether he could show that his incapacity was caused in some degree by the injury for which he was granted cover. Had he been able to do so, it could not have been said that his condition was caused exclusively by factors such as age or disease. An appellant may not establish causation simply by showing that the injury triggered an underlying condition which was already vulnerable (’the egg shell skull principle’) or that the injury accelerated a condition that would have been suffered anyway (’the acceleration principle’); McDonald [2002] NZAR 970. The question is simply whether the necessary causal nexus continues to exist between the injury and the condition...In some cases an injury in a person who suffers from degeneration will produce symptoms in circumstances where that person may otherwise have remained asymptomatic forever. In such a case it is the injury, rather than the degeneration, that is the cause of the incapacity.

The onus is on the appellant to show the necessary degree of causation on the balance probabilities, but the court has cautioned against placing too much emphasis on the onus; Wakenshaw [2003] NZAR 590. The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between injury and incapacity exists. This point is important in a case such as the present, because evidence shows that it is in the nature of back injuries of this kind that medical evidence frequently cannot establish clear cause and effect. For that reason, I consider that the District Court was wrong to dismiss the appellant’s claim by pointing to the onus of proof and the inconclusive nature of the clinical evidence. At the end of the day, causation is a question for the Court. Temporal considerations may enter into it, as may questions of credibility that cannot be delegated to the experts. ”

[24] The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between the injury and the incapacity exists. In a case such as the present it is tempting to rely upon the onus of proof, but as Justice Miller observes it important to caution against placing too heavy an emphasis on the onus. While the medical evidence states the issue is dif5cult the Court should endeavour to decide the case by considering all the evidence, medical and non medical, along with any temporal considerations. In keeping with the dictum of Miller J is the observation of Lord Brandon in Resa Shipping Co S.A v Edmunds [1985] 2 All ER 712, 718:

”No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

In Robins v National Trust Co [1927] AC 515 Viscount Dunedin said at pp 520:
”Their Lordships cannot help thinking that the appellant takes rather a wrong view of what is truly the function of the question of onus in such cases. Onus is always on a person who asserts a proposition or fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion, because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion. Now, in conducting any inquiry, the determining tribunal, be it judge or jury, will often find that the onus is sometimes on the side of one contending party, sometimes on the side of the other, or as it is often expressed, that in certain circumstances the onus shifts. But onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it can come to no such conclusion. Then the onus will determine the matter. But if the tribunal, after hearing and weighing the evidence, comes to a determinate conclusion, the onus has nothing to do with it, and need not be further considered. ”

[25] Viscount Dunedin said the first exercise was to consider all the evidence as a whole and the result of that examination might obviate the need to have recourse to the onus. It is a question of fact, whether the causal requirements, which the law lays down have been satisfied. In respect to this issue of fact common sense plays a role, as causal requirements are normally framed against a background of common sense. It is however necessary to give reasons supporting the causal relationship; Fairchild v Glenhaven Funeral Services [2002] 3 A11 ER 305, Causation in the Law Hart and Honore 106.

[26] A temporal connection may be an important factor in establishing a reasonable inference Donaghy (184/2002). In the case of Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 3 All ER 831 Lord Reid said at 833

”In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways. The respondents sought to show, first, that it is negatived by the subsequent course of the disease and, secondly, by suggesting tinea pedisf as an equally probable cause of its origin. I have found the case difficult but, on the evidence as it stands, I have come to the opinion that they have failed on both points.

[27] I appreciate that was a common law claim and that it might give too high a weight to a temporal connection, in this statutory field, as giving rise to an evidential presumption. However, this dicta does show the evidential weight that may attach in the overall evaluation of the circumstantial evidence as to assessing the strength of an inference to be drawn concerning a causal link. Whether a nexus is established is a question of fact to be answered against the background of fact and medical opinion, the onus being on the appellant.

[28] In my view, these passages sum up the attitude of Higher Courts towards the onus of proof and the importance of the temporal connection on issues of causation; i.e.:
[a] Even if matters are difficult the court should endeavour to first solve the issue without recourse to the onus of proof, unless that is really necessary;
It should only be in comparatively few cases that the onus of proof is decisive of the outcome.
[c] A temporal connection is an important piece of circumstantial evidence.
[d] It is the judge that ultimately considers all the evidence, including the relevant facts and the medical opinion in assessing a causal connection.

The Submissions of the Appellant

[29] The appellant submits that the review officer reached a conclusion that was not open to her on the medical evidence before her,

[30] The submission is that the review officer did not analyse the onus of proof and precisely what it meant in relation to the present claim.

[31] The submission is that the review officer reached the conclusion that she did that this was a surprising conclusion particularly after she adverted to the fact that none of the health professionals could clinically explain the mechanism that caused the right wrist drop.

[32] Against that background, it is surprising that she was able to conclude that the applicant satisfied the onus of proof that was upon her.

[33] The submission is that all the medical reports are characterised by language of imprecision and uncertainty.

[34] The submission is that the respondent’s case appears to be a medical enigma.


[35] I have read the various medical reports, and analysed them. I accept that this is a difficult medical case. However, I am of the view that the medical opinion favours that there was a probable causal link between the accident on 5 February 1997 and the ensuing wrist drop.

[36] As Professor Gorman said, if the respondent does have a reflex sympathetic dystrophy then it is an unusual and severe form of what is already a rare disease. If her wrist drop occurred as a consequence of falling out of a wheelchair, then it is not on the basis of a simple radial nerve injury.

[37] Professor Gorman also said the appellant would be pre-disposed to the types of injuries by her neuromuscular dystrophy. If this was accepted to be a reflex sympathetic dystrophy, it would hence be a consequence of the 1988 trampoline injury, and some ongoing liability would exist.

[38] In my view, the reviewer in this case has admirably dealt with the situation. It is a difficult situation, and she has endeavoured to analyse the factual situation, along with the medical situation. A temporal association cannot be lightly discounted.

[39] In my view the latest medical report from Mr Chin makes it clear while the exact nature of the lesion is difficult to characterise, it is probable that it relates to her head injury.

[40] For the reasons that I have given, I would dismiss the appeal. The respondent is entitled to $1,200 plus disbursements.

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