Parents of teen with cerebral palsy hold on to hope in landmark case against ACC
The family of a teenage boy with cerebral palsy are clinging on to hope a court will rule his condition should be covered by the ACC.
Jeremy Adlam, 16, was born prematurely by caesarean at Taranaki Base Hospital prematurely in 2000His parents and GP claim an injury he sustained just before his birth eventually caused his disability.
In a case that could have implications for dozens of other claims, Adlam's family believe the hospital caused his disability and have fought a decade-long legal battle for his treatment to be covered by ACC.
In 2015, they were granted funding after Accident Compensation Appeals Authority judge Neil MacLean ruled there had been a failure to provide treatment to Adlam.
However, the ACC appealed to the High Court and Adlam's appeal was overturned, meaning the ACC were no longer liable to pay for his treatment.
Adlam's lawyer, Hunter de Groot, said the family were very disappointed with the ruling and would be taking the case to the Court of Appeal..
"Our argument was that it's a no-fault system - the law doesn't require a mistake," he said.
"We argued that, with limited exceptions, the same principles ought to apply in treatment injury scenarios
"If you fall off a ladder ACC don't ask anymore questions, like who was holding the ladder, they just pay out."
De Groot said ACC's lawyers conceded that part of their argument related to the financial burden of Adlam's treatment.
"The judgement itself says the law is unclear, but if it's unclear it should come down in favour of the injured person," he said.
"It's very cruel though that different Courts have reached different conclusions - the family is caught in the wind."
Immediately prior to his birth Adlam suffered an injury known as intra-partum hypoxia, or a lack of oxygen to the brain, which eventually manifested as cerebral palsy.
In Adlam's appeal in 2015, Judge McLean concluded that staff managing his birth had failed to perform a caesarean at an earlier time and if they had Adlam may not have sustained the injuries he did. He said that was not a criticism of the doctors but simply an object hindsight finding of fact.
However, in a judgement released by Justice Gendall in the High Court he found that failure to treat could not occur when there were no indications another treatment course - such as conducting a caesarean earlier - were apparent.
A spokesperson for the ACC said Judge Gendall summed up their views in his case summary by stating the earlier District Court findings were "…a radical interpretation of the legislation and is arguably in conflict with the definition of Treatment Injury".
"For that reason it was important for ACC to seek High Court clarification concerning the proper interpretation of treatment injury provisions," the spokesperson said.
Cerebral Palsy Society chief executive Gilli Sinclair said she was aware of cases when a child had been born with cerebral palsy and ACC had accepted there had been an error in judgement.
"There isn't really a single cause, in most cases babies born with cerebral palsy the cause remains unknown," she said.
"It can be be caused by intervention, or the lack of, but most of the time it's just rotten luck."
Sinclair said cerebral palsy affected one in 500 babies born in New Zealand and its causes could be traced to premature birth, blood clotting, bacterial infection or prolonged lack of oxygen and was especially prevalent in boys, multiple and premature births and in small babies.
- Sunday Star Times