Leslie Norman Austin v Roche Products (New Zealand) Ltd

• Jurisdiction: New Zealand
• Judge: Williams J
• Judgment Date: 31 March 2021
• Neutral Citation: [2021] NZSC 30
• Court: Supreme Court
• Docket Number: SC 5/2020
• Date: 31 March 2021

Between

Leslie Norman Austin

Appellant

and

Roche Products (New Zealand) Limited

Respondent

[2021] NZSC 30

Court:

Glazebrook, O'Regan, Ellen France, Williams and Arnold JJ

SC 5/2020

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Statutory Interpretation — appeal against a decision of the Court of Appeal which struck out the appellant's negligence claim against Roche Products (New Zealand) Ltd (“Roche”) — the appellant claimed the prescription drug, Roaccutane, caused him to suffer excessive and painful bone growth in his spine — the appellant had already claimed and received cover under the Accident Compensation scheme — who has jurisdiction to decide questions relating to the definition of “treatment” and “an ordinary consequence of treatment” under the Accident Compensation Act 2001

Counsel:

G J Thwaite and Y S Kim for Appellant

J A MacGillivray and S M Jass for Respondent

H B Rennie QC and J B Orpin-Dowell for Accident Compensation Corporation as Intervener

• A The appeal will be dismissed one month from the date of this judgment unless the appellant makes an application under s 135 of the Accident Compensation Act 2001 together with an application to this Court for a stay of this proceeding pending completion of that process.

• B There is no order as to costs.

JUDGMENT OF THE COURT

REASONS

(Given by Williams J)

Introduction

1 A person who suffers a “treatment injury” has cover under the Accident Compensation Act 2001. A treatment injury is an injury that is not an “ordinary consequence” of treatment. Three issues arose in this appeal: what is treatment; what is an ordinary consequence of treatment; and who has the jurisdiction to decide those questions?

Background

2 The background to this case is unusual. The appellant, Mr Austin, suffers from excessive bone growth in his spine. It causes him pain and stiffness in his neck and back. Mr Austin claims that these health problems were caused by the prescription drug, Roaccutane, 1 which he took at various times between 1984 (when he was 32) and 2005 at the latest.

3 In March 2015, by which time he was 63 years old, Mr Austin claimed cover under the Accident Compensation Act (the AC Act) for his condition, which clinicians described as diffuse idiopathic skeletal hyperostosis (DISH), secondary to Roaccutane use. The Accident Compensation Corporation (ACC) accepted Mr Austin's claim in December 2015. In addition to covering his surgery, physiotherapy and consultation costs, ACC paid Mr Austin weekly compensation (including back payments) covering a period of about two years from April 2014. Mr Austin accepted the clinical treatment and the compensation. He did not pursue any of the review options under the AC Act to challenge ACC's acceptance of his claim. That was unsurprising, because he had succeeded in obtaining the entitlements he claimed.

4 In 2016, Mr Austin changed his position on his ACC cover. He commenced proceedings in the High Court against the respondent, Roche Products (New Zealand) Ltd (Roche NZ). Roche NZ is the New Zealand distributor of Roaccutane. Mr Austin claimed that Roche NZ had negligently provided him with Roaccutane for which he

sought compensatory and exemplary damages. He says Roche NZ breached a duty of care it owed to him in that it failed to disclose the risks associated with Roaccutane, failed to communicate recommendations about its use, and failed to arrange for the cessation of the distribution of Roaccutane in New Zealand. He says his medical problems were caused by these breaches of duty

5 Roche NZ applied to strike out either the entire claim as time-barred, or, in the alternative, the claim for compensatory damages as barred by the AC Act. 2 In the High Court, Associate Judge Christiansen dismissed Roche NZ's application on the basis that the applicability of limitations and the bar under the AC Act could not be determined without further inquiry and full evidence. 3

6 Roche NZ's subsequent application for review of that decision was removed by consent to the Court of Appeal. The Court of Appeal agreed with the High Court that strike-out was not appropriate in respect of limitations, 4 but the Court struck out Mr Austin's claim for compensatory damages. 5 It held the injury suffered was covered by the AC Act. 6

Issues

7 This Court granted Mr Austin leave to appeal. The approved question was whether the Court of Appeal was correct to strike out his claim for compensatory damages because his injuries were not an ordinary consequence of consuming Roaccutane. 7

8 ACC then became involved. By the terms of s 320 of the AC Act, ACC is entitled to be heard whenever proceedings in any court raise an issue of coverage under the Act. ACC had participated in the Court of Appeal, and after this Court granted leave to appeal, the Corporation advised it wished to be heard on this appeal also. ACC's concerns related to the meaning of “ordinary consequence” under s 32(1)(c) of

the AC Act. That issue, however, fell away once the parties filed their written submissions, as they agreed that the Court of Appeal's decision in Accident Compensation Corporation v Ng set out the correct meaning. 8 The only issue was whether the application of that meaning to Mr Austin's case could be decided summarily or required a full trial

9 ACC raised two new issues that do not appear to have been raised in the Court of Appeal. The first is whether, once Mr Austin had made his claim under the AC Act, it was permissible for him to (in effect) challenge ACC's decision about coverage by any process other than via the review and appeal pathways provided in the AC Act, given the ouster clause in s 133(5). The second issue relates to whether, since the Act's definition of treatment includes “failing to obtain” a recipient's prior informed consent, 9 that necessarily meant Mr Austin's injury was a treatment injury. It appears to be common ground that Roche NZ did not advise Mr Austin of the possible side-effects of using Roaccutane, so his prior informed consent to run those risks had not been obtained. 10

10 Mr Austin and Roche NZ provided their own supplementary written submissions on these two issues and addressed them further in oral argument.

11 Three issues were therefore addressed at the hearing of the appeal:

• (a) Does Mr Austin's prior claim to coverage prevent him from bringing these proceedings, pursuant to s 133(5) of the Act?

• (b) If not, does Roche NZ's failure to obtain Mr Austin's prior informed consent to the risks of Roaccutane mean he received treatment when he took it?

• (c) If so, is DISH an ordinary consequence of Roaccutane treatment?

12 If s 133(5) applies, then this Court has no jurisdiction to deal with the other issues, so we deal with that issue first. 11 We have concluded that s 133(5) does apply. 12 We therefore do not comment on the other issues. It is regrettable that this issue fell to be addressed for the first time in this Court without the benefit of the views of the Courts below, but this cannot now be avoided.

Can Mr Austin commence proceedings in the ordinary courts in relation to an injury for which he has made a claim under the AC Act?

13 Section 133(5) of the AC Act provides as follows:

(5) If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides.

14 It should be read alongside s 317, which provides:

317 Proceedings for personal injury

(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of—

• (a) personal injury covered by this Act; or

• (b) personal injury covered by the former Acts.

(2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,—

• (a) any damage to property; or

• (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or

• (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service.

(3) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury of the kinds described in subsection (1).

(4) Subsection (1) does not prevent any person bringing proceedings under—

• (a) section 50 or section 51 of the Health and Disability Commissioner Act 1994; or

• (b) any of sections 92B, 92E, 92R, 122, 122A, 122B, 123, or 124 of the Human Rights Act 1993.

(5) Subsection (1) does not prevent any person bringing proceedings in any court in New Zealand for damages for personal injury of the kinds described in subsection (1), suffered in New Zealand or elsewhere, if the cause of action is the defendant's liability for damages under the law of New Zealand under any international convention relating to the carriage of passengers.

(6) Subsection (1) does not affect proceedings to which section 318(3) applies.

(7) Nothing in this section is affected by—

• (a) the failure or refusal of any person to lodge a claim for personal injury of the kinds described in subsection (1); or

• (b) any purported denial or surrender by any person of any rights relating to personal injury of the kinds described in subsection (1); or

• (c) the fact that a person who has suffered personal injury of the kinds described in subsection (1) is not entitled to any entitlement under this Act.

Submissions

15 ACC's formal stance (quite appropriately) was that it made submissions to assist the Court, rather than to advocate for a particular outcome in relation to this issue. Nonetheless, ACC submitted that a possible reading...