Father claims son's heart stolen by hospital

Tauranga Hospital. Photo / File / Chris Callinan

A devastated father who claims his son's heart was stolen by a hospital has had a setback in his bid to sue for damages.

When Kenneth Mackenzie, 20, died in a motorbike accident in 1987, his heart was removed without the knowledge or consent of his family.

It was later taken from Tauranga Hospital, where he died after the crash, to Greenlane Hospital where one of the heart valves was successfully transplanted into a 16-year-old girl.

However, the National Transplant Donor Coordination Office didn't tell the Mackenzie family until 18 years after Kenneth's death.

Since 2005, his father John Mackenzie has been trying to sue the Crown Health Funding Agency for damages, on the grounds of mental suffering.

He applied for civil legal aid, but it was declined by the Legal Services Commissioner on the grounds that a case lacked sufficient prospects of success.

Mr Mackenzie, now aged 79, applied to the Legal Aid Tribunal for a review of the decision, but the Commissioner's decision was upheld.

A High Court judge also declined legal aid on the grounds.

Justice Robert Dobson ruled that Mr Mackenzie, as a secondary victim, couldn't sue for mental suffering caused by awareness of death or injury to a principal victim through negligence, unless he could prove he has suffered a recognisable psychiatric disorder or illness.

He also found that Mr Mackenzie's legal action was filed beyond the six-year deadline.

Dissatisfied with Justice Dobson's decision, Mr Mackenzie took his fight to the Court of Appeal where he applied for special leave to appeal.

At a hearing on July 8 this year, Mr Mackenzie disputed being categorised as a "secondary victim", arguing that his son Kenneth could not be treated as the primary victim because he is no longer alive.

He also steadfastly challenged the argument that his claim was time barred.

But in a new judgement out today, the Court of Appeal judges declined the special leave for appeal.

"We have considered all of Mr Mackenzie's submissions carefully, but are unable to identify any question of law justifying the grant of leave to appeal," said Justice Douglas White.

"The decision of (Justice) Dobson is clearly correct. Mr Mackenzie has no standing to bring a personal claim and his intended claim is in any event well out of time."

There was no order made for costs.