IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV [2016] NZHC 849. Appellant. THE ATTORNEY GENERAL Respondent

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1 IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV [2016] NZHC 849 IN THE MATTER OF BETWEEN AND the New Zealand Public Health and Disability Act 2000 TANIA JOY LAMB Appellant THE ATTORNEY GENERAL Respondent Hearing: 27 April 2016 Appearances: Appellant appearing in person S Leslie for the respondent Judgment: 29 April 2016 JUDGMENT OF MALLON J Introduction [1] Ms Lamb applies for an extension of time to review a decision of the Associate Judge Smith on 28 August That decision struck out Ms Lamb s claim for exemplary damages arising from treatment she received in hospital in Her application to extend the time is opposed by the respondent on the ground that her claim is without merit. Background [2] Ms Lamb suffered head injuries in a car accident in 1977 when she was 11 years old. She was admitted to Palmerston North Public Hospital where she remained for three and a half months. Six to nine days after her admission she developed paralysis on the left side of her body. She considers that if she had been given a CAT scan or other neurological assessment, a subdural haematoma may have 1 Lamb v Attorney-General [2015] NZHC 2066, [2015] NZAR LAMB v THE ATTORNEY GENERAL [2016] NZHC 849 [29 April 2016]

2 been detected and a craniotomy performed. In this way she considers that she lost the chance of having treatment to prevent the paralysis from developing. She considers her treatment was outrageously deficient. She wishes to pursue a claim for exemplary damages arising out of this deficiency. [3] Prior to commencing the present proceedings Ms Lamb sought accident compensation cover for treatment injury. Ms Lamb already had cover for personal injury by accident. Because she had that cover, her claim for treatment injury cover would have no compensation consequences. However she wished to have cover for treatment injury for the purpose of holding the hospital to account. 2 On 18 February 2009 ACC declined cover for a treatment injury. This decision was upheld on a review which concluded on 5 January [4] Ms Lamb appealed to the District Court on 24 August The appeal was heard on 5 April 2011 and the decision was delivered on 20 May The District Court (Judge Ongley) noted that cover for treatment injury was not available on a loss of a chance basis, in contrast with civil liability for personal injury in jurisdictions where such claims can be made. 3 Under the ACC legislation, it had to be shown on the balance of probabilities that the injury was caused by a treatment injury. 4 That depended on expert analysis. While the medical evidence did not appear to fully answer Ms Lamb s concerns, the medical evidence before the Court was that further diagnosis would not have improved the outcome for Ms Lamb. The claim for cover was moot in that Ms Lamb had cover in any case and it was not purpose of the ACC legislation to hold the hospital to account. 5 The appeal was accordingly dismissed. [5] On 29 September 2014 Ms Lamb filed proceedings against Mid-Central District Health Board in respect of the care she received in Palmerston North Public Hospital following that accident. Her claim was for breach of contract, negligence and breach of fiduciary duty. She claimed that her care was deficient and resulted in This purpose is recorded in the District Court decision on Ms Lamb s appeal from the decision of ACC declining her claim: Lamb v Accident Compensation Corporation [2011] NZACC 156 at [12]. At [21]. At [21]. At [26].

3 her suffering partial paralysis. She claimed exemplary damages. On 26 February 2015 she amended that proceeding to substitute Mid-Central District Health Board for the Attorney-General. This was pursuant to a court order made on 19 February 2015 on the basis that the district health board did not exist in 1977 and accordingly was not responsible for Ms Lamb s care at that time. [6] Ms Lamb s claim was struck out by the Associate Judge on 28 August 2015 on the grounds that it had no prospect of success. 6 That was for two reasons. First, it was statute barred. 7 Secondly, the claim did not allege facts which could give rise to an award of exemplary damages. 8 [7] Ms Lamb seeks to review the Associate Judge s decision. Under the High Court Rules any application for review was required to be filed by 4 September Her application for review was filed on 13 November She amended that application on 23 November Because she was out of time to bring her review application, she applies for an extension of time to bring her review application. 10 Length of delay [8] The application for review was filed about nine weeks late. That is a relatively short delay, as the respondent accepts. Reason for the delay [9] The application for review was filed late because of a mistake Ms Lamb made about the applicable procedure for challenging the Associate Judge s decision. Ms Lamb understood the correct procedure was to lodge an appeal in the Court of Appeal. She had inquired with the court registry who it seems also mistakenly had Lamb v Attorney-General, above n 1. At [60], [64], and [75]. At [81]. High Court Rules, r 2.3. Rule 1.19.

4 this view. She filed an appeal on 28 September 2015 which was within the time period for filing appeals. 11 [10] Ms Lamb has therefore explained the delay and her actions showed an intention to pursue this matter. It would therefore be appropriate to grant the extension unless it is clear that her application for review cannot succeed. 12 The merits of the proposed review Statute barred [11] The Associate Judge considered that the claim fell within s 4(7) of the Limitation Act. That provides: 4 Limitation of actions of contract and tort, and certain other actions (7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date: Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay. [12] Ms Lamb contends her claim is not an action in respect of bodily injury. She says her claim is for exemplary damages for negligence by the hospital for its failure to adequately assess and treat her when it had a duty to do so. The submission could be put another way. That is to say, she is not seeking The time for appealing to the Court of Appeal is 20 working days: Court of Appeal (Civil) Rules 2005, r 29. This means that 29 September 2015 was the last day Ms Lamb could file an appeal to the Court of Appeal if that rule had applied. See the discussion in McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR2.3.03].

5 compensatory damages for bodily injury. Rather she is seeking exemplary damages to hold the hospital to account for its systemic failings in the provision of her care. [13] However the answer to this submission is that the action remains in respect of bodily injury even though the relief sought has a purpose other than to compensate Ms Lamb for those injuries. The bodily injury she suffered is the damage which forms one of the necessary ingredients of the negligence cause of action. This has been the approach of the courts in a number of decisions. 13 The Associate Judge was therefore correct to decide that s 4(7) applied. [14] The strike out application proceeded on the basis that, in claims for damages for bodily injury, the cause of action accrues when the plaintiff is reasonably able to discover that a relevant act or omission has occurred, the plaintiff has been injured, and the act or omission caused the injury. The Associate Judge proceeded on the basis that October or November 2008, when Ms Lamb said she discovered the relevant hospital records, was the latest date when the cause of action could have accrued. This may be revisited if a review hearing takes place, but for the purposes of considering whether an extension of time should be granted that is the basis on which I will proceed. [15] Ms Lamb does not seek to challenge the finding of the Associate Judge that she did not seek leave within six years of when the cause of action accrued. She contends that she brought her claim within two years of when the cause of action accrued. She says she did this by bringing her District Court appeal in respect of ACC s decision to decline her claim for cover for treatment injury. That appeal was lodged within two years of October/November She says she lodged the ACC claim because she understood (based on advice) that was the appropriate forum. She says that the appeal was about holding the hospital to account for failing to treat her properly. That remains her claim, albeit that it is now a civil proceeding in the High Court for exemplary damages and the defendant is the Attorney-General. 13 See Neville v Attorney-General [2015] NZHC 1946, [2015] NZAR 1537; Williams v Chief Executive Department of Corrections [2013] NZHC 3509; and Banks v Attorney-General [2010] NZAR 264.

6 [16] The two year time period applies to an action which means any proceeding in a court of law other than a criminal proceeding. Counsel for the respondent submits that the appeal was not the same action as the present one because it was a separate claim in a separate court against a separate defendant. Counsel for the respondent may well be correct about this. However, I consider the issue warrants full consideration at a review hearing. As Ms Lamb argues, the essence of her claim (that is, to hold the Palmerston North Public Hospital to account for what Ms Lamb regarded to be its negligent care of her) is unchanged. I am not convinced, on the basis of the limited argument on this issue in the context of an application for extension of time, that the present proceeding is a fresh (and different) action simply because it is brought in the High Court rather than the District Court as counsel for the respondent contends. It may well be a different action, however, because there are materially different legal consequences arising in the present claim. [17] Ms Lamb s argument is somewhat novel. While Ms Lamb s argument appears to have difficulties, I consider it is better to allow this argument to be fully considered in a review hearing rather than declining to allow the review to proceed because Ms Lamb was late in filing her application for review for reasons she has explained. Exemplary damages [18] The Associate Judge also considered that the pleading did not allege a conscious appreciation of the risks that the acts or omissions posed to her safety, and that the medical staff (or possibly managerial staff to the extent systemic failures are relied upon) deliberately and outrageously proceeded to run those risks. 14 [19] Ms Lamb says she intends to amend her pleading so that it does. She believes the care she received at the hospital meets this test. Counsel for the respondent considers such a pleading is doomed to fail, given the very high threshold the test sets for exemplary damages and the absence of any foundation, on the facts 14 Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 per Tipping J [110], [150]-[151], Blanchard J at [60] and Wilson J at [259].

7 on which Ms Lamb relies, which could meet this test. This argument is better considered once an amended pleading is before the Court. Costs [20] Ms Lamb wishes to challenge the Associate Judge s costs orders. Her concern is that costs were allowed for two hearings before the Associate Judge. She does not understand why the first hearing proceeded in her absence when she was easily contactable by telephone. Counsel for the respondent explained that the hearing occupied one day in total (half a day making her submissions and half a day listening to Ms Lamb s submissions) and that is all the costs that the respondent claimed in this respect. Ms Lamb s concern is not therefore a basis for challenging the costs order that was made. Result [21] Accordingly Ms Lamb s application for leave to extend the time for filing her review application is allowed. The delay in filing the application was short and it has been explained. Ms Lamb s claim may well be statute barred but, whether it is, and whether she can properly plead a claim that could give rise to exemplary damages, is at least worthy of full consideration on a review hearing. The review should be allocated a fixture in consultation with counsel for the respondent and Ms Lamb. Mallon J