Sandra is a senior crimes and justice reporter for the Bay of Plenty Times.

Hearing plea for heart valve case

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Kenneth MacKenzie died a day after he was critically injured in a motorcycle accident.
Kenneth MacKenzie died a day after he was critically injured in a motorcycle accident.

A grieving Tauranga father, whose dead son's heart was removed without his consent, pleaded with three Court of Appeal justices to grant him a full hearing on his $200,000 compensation claim.

Pensioner John MacKenzie, 80, who addressed the Court of Appeal justices via audiovisual link in Tauranga High Court yesterday, was seeking a substantive re-hearing, arguing that Justice Andrew had been "quite wrong" in her ruling about the statute of limitation period having lapsed, and also that Crown Law was not the correct entity to sue.

His 20-year-old son Kenneth's heart valve was removed after his life support was turned off in Tauranga Hospital on October 2, 1987 - the day after he was seriously hurt in a motorcycle accident.

In September last year, Justice Andrews upheld Associate Judge Roger Bell's early ruling to strike out Mr MacKenzie's statement of claim for damages on the basis that it was statute barred, despite him having "an arguable case".

He said Crown Law had "perpetrated" a serious breach of its statutory duty by ignoring evidence filed in support of his claim.

"It is either a breach of statutory duty or negligence or both. It was against the rule of law and against the purpose of justice," he said.

Mr MacKenzie insisted he filed his statement claim just inside the six-year timeframe but said if it was proven there was an intention to deceive by Crown Law it would not be statute barred.

Mr MacKenzie said if the Crown's recent offer to waive $14,500 in legal costs and pay $5000 by way of an ex-gratia payment had been made in 2006 the case would have been resolved.

"But I have spent thousands and thousands of dollars over that time ... The court might ask me what I want. In a word I want justice," Mr MacKenzie said.

He wanted a formal apology from the Attorney-General and an admission of liability from Crown Law plus a settlement of at least $200,000.

"The first two are absolutely non-negotiable," he said,

Crown Law solicitor Isabella Clarke told the Court of Appeal justices to grant Mr MacKenzie leave for substantiative re-hearing would be a departure in law.

There was no allegation against Crown Law in the original statement of claim, and even if there had been, unfortunately Mr MacKenzie was out of time.

"The Crown acknowledges and regrets the significant harm and grief suffered by Mr MacKenzie and continues to suffer from the removal of his son Kenneth's heart valve and transplant without his consent. The Crown acknowledges that," she said.

The Court of Appeal justices reserved their decision.


October 2, 1987:
* Kenneth MacKenzie's life support turned off after motor cycle accident

March 21, 2005:
* Mr MacKenzie learned his son's heart valve had been removed and transplanted into 16-year-old girl's body.

November 24, 2006:
* Claim for damages denied by the now disestablished Crown Health Financial Agency

November 23, 2012:
* Mr MacKenzie lodges formal statement of claim against the agency but repeatedly denied legal aid to pursue claim

January 31, 2013:
* Attorney- General files application to strike-out claim

February 17, 2015:
* Associate High Court Judge Roger Bell strikes out claim

July 31, 2015:
* High Court Justice Pamela Andrews hears a judicial review application which she dismissed in her September 14, 2015 ruling.

- Bay of Plenty Times

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