Privy Council was crucial to a retrial, say lawyers

By HELEN TUNNAH

The woman at the centre of the Gisborne cervical cancer controversy needed the objectivity and independence of the Privy Council to win her right to sue pathologist Dr Michael Bottrill, her lawyers said yesterday.

Her lawyer Antonia Fisher said the detachment of the London-based final appeal court had been critical in a legal ruling which overturned a Court of Appeal decision blocking legal action.

"For the life of me I cannot understand why we as lawyers would want to give up having that pool of judicial minds there, it just doesn't make sense," Ms Fisher said.

"It is the independence and objectivity that you get from distance, you get because they're in London. I don't see how we can get that in New Zealand, we're too small."

She told a group of MPs yesterday she opposed the Government's move to scrap appeals to the Privy Council.

Attorney-General Margaret Wilson has announced plans for a new final appeal court, the Supreme Court, based in Wellington with only New Zealand judges.

Ms Fisher's client, who has name suppression but is known to Herald readers as "Jane", had to undergo a radical hysterectomy, radiation and other medical treatments for invasive cancer after Dr Bottrill misread her cervical cancer smears.

She unsuccessfully tried to sue Dr Bottrill in 1999 but after a ministerial inquiry found he had misread almost 2000 women's smears, the High Court agreed to a retrial based on the new evidence.

But the Court of Appeal quashed the decision saying there was no proof Dr Bottrill acted with "deliberate or conscious recklessness".

Last year the Privy Council overturned the Court of Appeal ruling, saying: "Mrs A, who has suffered grievously, should in all fairness and justice have an opportunity to present her case to a judge with the benefit of new evidence."

The Privy Council studied cases across Australia, Canada and the US to rule intentional wrongdoing or conscious recklessness was not essential for an exemplary damages payment to be made.

Ms Fisher told Parliament's justice and electoral committee meeting in Auckland yesterday New Zealand did not have a large enough population to resource a final appeal court of the necessary calibre.

"Final appellate court judges need to have a global perspective on the law and society and to be free from subconscious and indirect influence.

"I believe it was the great intellect and learning of the Law Lords ... and their detachment from New Zealand that enabled them to see that justice required that Mrs A be given the right to a fair trial she had not had in New Zealand courts."

She said there had been no problems with a London-based court being unfamiliar with New Zealand laws relevant to the case and she was not concerned there were no women on the Privy Council to hear the case.

"In any case judges have to be referred to the relevant sections of any act. I referred them to the numerous sections that were relevant. They read them, they understood them, they sought clarification of some points, as any judge would do.

"The fact that I was a woman, the fact that Patient A was a woman, didn't seem relevant. I didn't think it mattered at all."

She said appointments to the Judiciary should be merit-based.

Jane has said that she wants to settle out of court with Dr Bottrill, but will return to court if necessary.

The story so far

* In 1995 Jane is diagnosed with cancer after her cervical smear tests are misread by Gisborne pathologist Dr Michael Bottrill;

* She sues Dr Bottrill for gross negligence and seeks damages but the action eventually fails in the High Court;

* A ministerial inquiry finds Dr Bottrill has misread thousands of smears and the High Court agrees to a retrial;

* The Court of Appeal in 2001 overturns the decision, saying Dr Bottrill has not acted with "deliberate or conscious recklessness" in her case;

* July 2002, the Privy Council says a retrial should be held in the interests of justice.