M v Accident Compensation Corporation [2018] NZHC 1919 (31 July 2018)

Last Updated: 25 October 2018

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR PARTICULARS LIKELY TO LEAD TO IDENTIFICATION OF APPLICANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-946 [2018] NZHC 1919

BETWEEN	M Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	1 March 2018 (further submissions received 8 March 2018, 12 March 2018 and 16 March 2018)
Appearances:	T Mijatov for Applicant H Evans for Respondent
Judgment:	31 July 2018

JUDGMENT OF GRICE J

(Refusal of special leave to appeal decision of the District Court relating to accident compensation claim)

M’s chronic pain

[1] M has suffered chronic pain for some years.¹ It dates back to hernia surgeries intended to repair initially an inguinal hernia and subsequently a small femoral hernia. M lodged an accident compensation claim with the Corporation on 15 February 2010. This claim was based on the pain that M was then suffering as the consequence of a surgery for a right inguinal hernia. The claim was rejected on 24 February 2010 on

1. The applicant’s name, address, occupation and particulars that could lead to her identification have been suppressed pursuant to s 160(1) of the Accident Compensation Corporation Act 2001 (the Act).

M v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 1919 [31 July 2018]

the basis it did not meet the criteria for a treatment injury, and no personal injury had been identified. M was unsuccessful on a review of that decision. M unsuccessfully appealed to the District Court in 2016.² M then applied to the District Court for leave to appeal that decision to the High Court. That was refused.³ M now seeks special leave from the High Court to appeal against the 2016 decision of the District Court.⁴

[2] In order to obtain special leave to appeal M must establish an arguable question of law and identify a sufficient public interest, or matters at stake, to justify the second appeal.⁵

[3] The arguable question of law for consideration in dealing with this application is:

Did the District Court consider and correctly determine the claim for cover for post-surgical neuropathic pain following insertion of surgical mesh as a gradual process treatment injury under s 20(2)(f) of the Accident Compensation Act 2001.

[4] The application for special leave was filed out of time. An application for extension of time to file the application was made orally. I refuse that extension due to the relevant wording of the appeal provisions.⁶ This Court, accordingly, does not have jurisdiction to hear this matter.

[5] If I am wrong, I also find M has failed to establish the grounds required for a special appeal. I am of the view that the findings M wishes to appeal are factual findings rather than legal ones. Therefore, special leave would have been refused in any case.

[6] I will now consider the relevant parts of the District Court judgment.

² M v Accident Compensation Corporation [2016] NZACC 182 [Substantive appeal decision].

³ M v Accident Compensation Corporation [2017] NZACC 126 [Leave decision].

⁴ Substantive appeal decision, above n 2.

⁵ Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

⁶ Accident Compensation Act 2001.

Background and procedural history

[7] M had surgery to repair a right inguinal hernia in 2008. M was informed of the benefits and risks of the surgery. After the surgery, the discharge note disclosed no complications. Almost a month after the surgery M’s surgeon noted that M had pain and numbness in the lower abdomen, but this had improved and within 3 weeks M was back at work. In M’s second assessment a few months later, the surgeon recorded that M had pain in the right groin that radiated toward the right iliac crest that got worse throughout the day. The surgeon noted this pain was unlikely to be caused by trapped nerves. A month later, the surgeon undertook a further review of
M. He did not find any abnormalities on M’s CT scan. He noted that M was feeling much better on new painkillers. The surgeon then believed M’s pain was from another hernia that had been discovered.

[8] In late 2008 M had that femoral hernia repaired. The surgeon noted in a letter to M’s GP in early 2009 that he thought a nerve might be entrapped, but he found it odd that M didn’t have tenderness near the scar.

[9] The pain monitoring and updating continued throughout 2009, with the surgeon noting that he was disappointed that M continued to have pain.

[10] M lodged a claim with ACC in early 2010 for ongoing pain symptoms following M’s surgery. This was rejected on the basis M did not meet the criteria for treatment injury. The report that accompanied the decision said that the pain had not identified as being related to a ‘personal injury’ as the surgery was without issue and the pain had not been pin pointed to a cause.

[11] M sought a review of the Corporation’s decision which was dismissed. Following this dismissal, M appealed to the District Court under s 149 of the Act.

The substantive District Court judgment

[12] The Judge in the District Court appeal noted that, in the circumstances, for M to receive accident compensation the injury must meet the test set out in s 32(1) of the Accident Compensation Act 2001 (the Act) which provides:

32 Treatment injury

(1) Treatment injury means personal injury that is—

(a) suffered by a person—

(i) seeking treatment from 1 or more registered health professionals;

...

(iii) referred to in subsection (7); and

(b) caused by treatment; and

(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—

(i) the person’s underlying health condition at the time of the treatment; and

(ii) the clinical knowledge at the time of the treatment.

[13] The Judge explained that a “personal injury” for the purposes of s 32(1) is defined in s 26 of the Act. Of the different categories of “personal injury” listed in that section only s 26(1)(b) fitted this case. It provides:

(b) Physical injury suffered by a person, including, for example, a strain or a sprain ...

[14] Therefore, the Judge said the issue must be whether M can show the pain arose because of a “personal injury” that was caused by her treatment but was not a necessary or ordinary part of her treatment.

[15] In the alternative, Counsel for M argued that M was suffering from a “personal injury...caused wholly or substantially by a gradual process, disease, or infection that is a treatment injury” under s 20(2)(f). The argument was that even if the cutting of the nerves was a necessary part or ordinary consequence of the surgery, the pain from the gradual process of the nerves abnormal regrowth was not an ordinary or necessary consequence of the surgery. The Judge sets out the case for M in this regard as follows:⁷

⁷ Substantive appeal decision, above n 2, [7] – [10].

[10] In the alternative to submission [M] was entitled to cover for a treatment injury, Mr Forster also submitted that [M] was entitled to cover under s 20(2)(f) of the Act, being a “gradual process ... that is treatment injury” suffered by a person. In this regard it was Mr Forster’s submission that even if the initial physical injury to the nerves resulting from the open operation respect of the inguinal hernia repair was a necessary part or ordinary consequence of the surgery, the pain resulting from the gradual process as the nerves have re-grown in an abnormal fashion “is not a necessary or ordinary consequence and therefore cover is available for this” because “it is the treatment injury for which cover is sought and there is no need for the physical injury itself to be covered”.

[16] The Judge concluded that this argument could not succeed. Section 20(2)(f) of the Act was designed to address situations where a gradual process has arisen from a treatment injury, rather than the section giving rise to a new form of treatment injury. The Judge said that first there must be a treatment injury under s 32 of the Act established, and only then will the gradual process caused by that treatment injury be covered.

[17] After dealing with the history of pain suffered by M the Judge turned to the first question under s 32 of the Act: could the inguinal hernia repair give rise to a treatment injury considering that the physical damage (ie the cutting of the nerves) was a necessary part or ordinary consequence of the procedure? The Judge noted that whether M gave informed consent was key to this limb.

[18] The Judge was satisfied there was informed consent to the surgery, and that any cutting of the nerves was a necessary part of the operation.⁸ Therefore, the process of nerve regrowth after being cut was an ordinary consequence of the surgery that took place. He found that there could be no treatment injury in terms of s 32(1) of the Act. M failed on this limb.

[19] The Judge then turned to the second question: were M’s pain symptoms caused by the treatment received or any other physical injury?

[20] The Judge notes that even if he was wrong in his conclusion on the first question, he was also satisfied that M’s pain symptoms were not causally linked to the

8. M does not appeal the finding in relation to informed consent nor the finding that cutting nerves was an ordinary consequence of the hernia operation/s.

surgery. A report was provided to the Court by Dr Anderson on behalf of M. The Judge did not accept Dr Anderson’s evidence as to the type of nerve injury advanced nor that it was caused by the surgery.

[21] While the surgery did involve cutting a number of nerves, the Judge found there was no physical evidence to support a nerve injury of the kind Dr Anderson advocated for and the explanation the doctor gave. Dr Anderson did not explain why the descriptions and reports to different clinicians of M’s pain and symptoms varied so significantly in the years since the surgery took place. The Judge preferred the evidence of the other medical specialists who provide reports, including that of the surgeon who carried out the inguinal hernia surgery, to the evidence of Dr Anderson.

[22] The Judge noted that two main points convinced him that Dr Anderson’s report was insufficient. First, there was no explanation for the changing descriptions of pain reported by M. Secondly, the actual injury causing the pain was not identified in his report. The Judge said:⁹

[52] In particular, against a background where there is no physical evidence to support a nerve injury of the type posited by Dr Anderson, his conclusions with regard to causation do not adequately explain or reconcile the symptoms experienced by M as recorded by other clinicians in the years since the surgery took place. First, it is clear Dr Anderson reaches his conclusions on causation on the basis of consistent pain symptoms experienced by M in the aftermath of the inguinal hernia repair “pain in the right groin radiating into the inner aspect of the right thigh”, when as the factual background section shows, the symptoms were in fact anything but consistent. For example:

(a) July 2008 – Mr Phang recorded M suffering from lower abdominal/upper abdominal pain and pain in the right groin (see [15] above).

(b) October 2008 – Mr Phang observed “right groin pain that radiates towards her right iliac crest” (see [16] above).

(c) January 2009 – Mr Phang recorded pain in M’s groin “centred around the internal ring region radiating not only medially towards the suprapubic region but also laterally towards the anterior superior iliac spine” with a “painful spot just lateral to the anterior superior iliac spine” (see [21] above).

(d) March 2009 – Mr Phang recorded “the pain around [M’s] right groin has settled” but if she did not take Amitriptyline “she would have

⁹ Substantive appeal decision, above n 2, at [52].

more pain in her right anterior superior iliac spine region” (see [22] above).

(e) May 2009 – Mr Phang recorded that M’s pain was “intermittent nowadays” with some pain felt “towards the end of the scar ie over the right pubic turbecia region”, with “the main pain and discomfort arising laterally, posterior and lateral to the [anterior superior iliac spine] and radiating down the lateral aspect of her thigh” (see [23] above).

(f) October 2009 – Mr Phang recorded that M was “quite clear that she no longer has pain in the right groin and this resolved several months ago” but she was experiencing “ongoing pain in her lower back around the back and lateral aspect of the right hip and this pain also radiates down the back of her right thigh” (see [24] above).

(g) February 2010 – Dr Shepherd recorded in the treatment injury claim form “pain radiating from back to buttock, thigh and groin – R side” (see [26] above).

(h) July 2010 – Mr Bowker noted M experiencing pain “though the inguinal region, with some radiation more laterally, as well as down into the anteromedial right thigh and down the right buttock and postural lateral aspect of the upper thigh” (see [27] above).

(i) 26 July 2010 – Mr Bowker observed after the second femoral hernia repair that “the ‘referred’ pain in the right sacroiliac/hip area is unchanged, but pains that were felt over the right pubic region and anteromedial area of the right thigh have gone” (see [29] above).

(j) October 2010 – Mr Bowker indicated that M “continues to experience neurogenic pain extending around the buttock area, hip and onto the right thigh” (see [31] above).

(k) November 2010 – Dr Hill noted on examination that M’s “pain is located in the region of the lateral right iliac fossa and radiates into the right groin and into the lateral and medial right thigh as far as the knee” (see [32] above).

(l) April 2011 – Dr Kibblewhite recorded following the examination carried out at TARPS “right flank to right thigh [pain] remains” (see

[35] above).

(m) September 2014 – Dr Anderson recorded “pain in the right groin radiating into the inner aspect of the right thigh” (see [37] above).

[23] Dr Anderson was unable to explain the inconsistency and variation in the reports. The Judge says:¹⁰

[53] As Mr Evans for the Corporation submitted, these significant changes in symptoms and presentation over the six years following the inguinal hernia

¹⁰ At [53].

repair surgery were simply not explained by Dr Anderson. This lack of explanation or even engagement with the observations of the other clinicians severely undermines the weight that can be given Dr Anderson’s conclusions and in consequence M’s claim that the pain symptoms are a consequence of a specific injury having been suffered as a result of the surgery.

[54] In reply, Mr Forster suggested that the changes in presentation could be explained by the fact that M was suffered referred pain and also suggested that some form of changes in the presentation could have been due to the effects of the Amitriptyline prescribed to M by Mr Phang. With respect to Mr Forster, neither explanation is able to assist M. First, while referred pain is well understood in this jurisdiction, there is no evidence produced to provide an explanation as to how a discrete injury could have resulted in the changes in presentation of symptoms observed. Likewise, the use of Amitriptyline cannot provide an overall explanation for the changes in symptoms experienced by M. Specifically, changes and indeed improvements in symptoms did not change when M ceased taking Amitriptyline and there is in any event no medical evidence to support Mr Forster’s submission.

[55] In any event, upon close analysis it is clear that Dr Anderson is also less than specific about what the actual injury said to be causing M’s pain symptoms actually was. In particular, in his analysis, in answer to the questions posed by counsel, Dr Anderson talked merely about “physiological damage to [M’s] nerve” without identifying which nerve was damaged or indeed if more than one nerve had been damaged. In this regard it is clear that Dr Anderson placed some considerable weight on M’s advice to him that Mr Bowker had advised her that her “nerves were a mess”. As Mr Evans noted, this advice is in fact quite inconsistent with Mr Bowker’s written reports which noted, following the second femoral hernia repair, only that:

... the divided ilioinguinal nerve was identified at the lateral edge of the mesh. It was dissected back, divided again and the end placed within the muscle fibres of external oblique. The genital branch of the genitofemoral nerve appeared intact. The femoral branch was not identified with certainty.

[24] The Judge therefore concluded that his findings on both questions meant that the appeal must be dismissed.

Application for leave to appeal to the High Court made to the District Court in first instance

[25] M applied to the District Court for leave to appeal to the High Court under s 162 of the Act.¹¹ The District Court Judge hearing that application concluded the issues raised on appeal by M were no more than disputed facts and the appeal did not raise an issue of public importance. As he put it, the appeal was about whether

¹¹ Leave decision, above n 3.

laparoscopic surgery undertaken to repair a hernia was causing pain identified two years later. He said this was a factual question.

[26] The Judge dealt with each of the grounds of appeal raised in the application for leave to appeal. He considered each was insufficient. These included the first ground not now pursued. This related to whether the civil standard of proof had been applied correctly. The Judge concluded it had been.

[27] The second ground was whether the Judge had considered and correctly determined the claim for cover for gradual process injury. He considered this was dealt with appropriately as no treatment injury was established under s 32 of the Act.

[28] Finally, the Judge considered whether the decision under appeal showed an error of law in its rejection of the evidence of Dr Anderson. Again, he concluded there was no error as there was extensive reasoning set in the appeal decision supporting that conclusion. This fulfilled the Court’s obligation to resolve the conflict of expert evidence.

[29] Therefore, the District Court determined that there was no question of law for which leave should be given to appeal to the High Court. The application for leave was dismissed.

Standard of special leave to appeal under s 162(3)

[30] In order for special leave to be granted under s 162(3) of the Act, the appeal must raise a question of law. In fact, the Court must be satisfied that the question of law reaches the threshold required to justify allowing a further appeal to the High Court.¹² It can be said that a question of law properly arises in the following circumstances:¹³

A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is for the fact-finding Court unless clearly unsupportable. Whether or not a

¹² Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [5].

¹³ At [28].

statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law.

(Footnotes omitted)

[31] Justice Collins in W succinctly put it as follows:¹⁴

[32] Appeals from decisions of the District Court to the High Court under the Act are confined to questions of law. An appeal on a question of law cannot succeed where the Court below has applied the correct law to the facts of an individual case. “An ultimate conclusion of a fact-finding body can sometimes however be so insupportable – so clearly untenable – as to be left to amount to an error of law”. That rare circumstance may arise where there is no evidence to support the determination under appeal, or where “... the evidence is inconsistent with and contradictory of the determination” or where “... the true and only reasonable conclusion contradicts the determination”.

(Footnotes omitted)

[32] The principles that apply to an application for special leave are set out in

Kenyon v Accident Compensation Corporation as follows:¹⁵

(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandie v Stewart [1982) 1 NZLR 708 (CA)

(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of [principle] at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Daily Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43

(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Limited (1990) PRNZ 464

(d) It is for the Applicant to show that leave is required in the interests of justice: Avely v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA)

(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra).

¹⁴ W v Accident Compensation Corporation [2018] NZHC 93 at [32].

¹⁵ Kenyon v Accident Compensation Corporation [2001] NZHC 1301; [2002] NZAR 385 (HC) at [15].

[33] The Court must be satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.¹⁶

[34] The question is, has the applicant identified an error of law that has a real prospect of success and is a matter of sufficient public or private importance as to justify a second appeal?

Grounds for special leave to appeal

[35] Mr Mijatov for M applies for special leave to appeal on the grounds the District Court erred in its determination. The only question of law M raises is:

Did the District Court consider and correctly determine the claim for cover for post-surgical neuropathic pain following insertion of surgical mesh as a gradual process treatment injury under s 20(2)(f) of the Accident Compensation Act 2001.¹⁷

[36] M submitted that an adverse finding regarding the existence of a “treatment injury” under a different limb the legislation does not preclude consideration of s 20(2)(f) in order to provide cover. She submits the Judge’s interpretation of s 20(2)(f) is wrong in law, because it focussed on the “treatment injury” element of cover. It neglected to read the paragraph in the context of s 20 and in a manner consistent with s 26(1) and (2). In addition, the submission is that, interpretation is inconsistent with the Supreme Court’s decision in Allenby.¹⁸

[37] The test that M puts forward as the correct test has two steps:

(a) There must be a gradual process\disease\infection; and

(b) That gradual process\disease\infection must be a treatment injury.

[38] Counsel said that the District Court should have:

¹⁶ Cullen v Accident Compensation Corporation, above n 5, at [5].

¹⁷ Application for special leave to appeal to the High Court dated 2 November 2017.

¹⁸ Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.

(a) Looked at whether there was a personal injury under s 26(1). The personal injury was the abnormal growth of cut nerves; and

(b) Asked if there was a “gradual process”. This was the abnormal regrowth of cut nerves; and

(c) Asked, whether that gradual process was a “treatment injury” under s 32 of the Act. This entailed consideration of whether the abnormal regrowth was an ordinary consequence of the surgery.

[39] M says a two-step process was used in Allenby.¹⁹ First a personal injury must be found, and second, the injury must be caused in one of the ways specified in s 20(2).

[40] The Supreme Court case in Allenby was considering whether a woman who had become pregnant following a failed sterilisation suffered personal injury by medical misadventure for the purposes of the Act. The Supreme Court found she was entitled to cover. M submits the test applied by the District Court in this case was inconsistent with comments in the Supreme Court made in that case. In Allenby the cover was established under another provision but it considered cover under available under s 20(2)(f).

[41] Elias CJ in Allenby summarised the approach as follows:²⁰

[23] There is also, I think cover for personal injuries due to the gradual process of pregnancy through s 20(2)(f). In that provision, the personal injury which is the subject of cover is caused by “a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person”. Impregnation or conception strikes me as exactly such personal injury. It has immediate physical impact but it also constitutes a process which itself has consequential physical impact properly characterised, for the reasons discussed in [18]–[19], as physical injuries for the purposes of the definition of personal injury.

[24] While there is some awkwardness in the references both to the “personal injury” for which cover is provided by s 20(2)(f) and (g) and the causative “gradual process ... that is personal injury caused by medical misadventure suffered by the person” or the causative “gradual process ... consequential on personal injury for which the person has cover”, the meaning is clearly intended to be expansive in relation to the consequences of the

¹⁹ At [59].

²⁰ At [23] – [24].

original personal injury, whether caused by medical misadventure or in some other way that is covered under the Act. If linked by “gradual process” or “disease” or “infection” to the original personal injury, subsequent personal injury is covered.

[42] Blanchard, McGrath and William John JJ put it:²¹

[64] Returning again to s 20(2), it seems that a distinction must be intended as between para (b):

“Personal injury caused by medical misadventure suffered by the person”.

And para (f):

“Personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person”.

In the first situation, in para (b), there must be a medical misadventure, that is, for our purposes, a medical error; and it must give rise to a physical injury. The Solicitor-General gave the example of the surgeon having amputated the wrong (good) leg of the claimant patient.

[65] In the second situation, in para (f), the personal injury must both (a) be caused by medical misadventure and (b) it must also take the form of a gradual process, disease or infection. The Solicitor-General suggested the example of gangrene consequent upon the amputation of the wrong leg. The gangrene could in this example be regarded as a personal injury because it would not have been suffered but for the severing of the leg. So it would also fit within para (g). The gangrene is certainly a disease or infection but, as well, it would seem to come within the term “gradual process.” The Solicitor- General was, however, also helpfully able to supply an example of a gradual process which would not also be termed either a disease or an infection – an adhesion caused by excessive (negligent) radiation treatment. There is little difficulty in accepting that this would be a personal injury.

[43] M in her submissions quotes the above paragraph in Allenby as follows:

[65] ... the personal injury must both: (a) be medical misadventure [now, treatment injury]; and (b) it must also take the form of a gradual process, disease or infection.

[44] The quote when not modified as it has been in the above paragraph reads:

[65] ... the personal injury must both: (a) be caused by medical misadventure; and (b) it must also take the form of a gradual process, disease or infection ...

(Emphasis added)

²¹ At [64] – [65].

[45] A comparison of the version of s 20(2)(f) as it was when considered in Allenby with the provision in force at the time relevant to this case must be made. Section 20(2) was amended in 2005 by replacing the phrase “medical misadventure” with “treatment injury” and consequential amendments.

[46] The Allenby s 20(2)(f) reads:

(f) personal injury caused by a gradual process, disease or infection that is personal injury caused by medical misadventure suffered by the person.

[47] The s 20(2)(f) relevant to this case reads:

(f) personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person:

[48] In turn “treatment injury” is defined (insofar as is relevant here) as “personal injury ... caused by treatment”.²²

[49] For the present purposes, the changes to s 20(2)(f) are not relevant. The Supreme Court’s comments apply equally in this case. A treatment injury was a prerequisite to establishing cover. As a matter of fact, the Judge here found there was “no treatment injury” even if M’s argument was legally correct. He found neither the surgery, nor the pain, nor the damage to M’s nerves were treatment injuries.²³

[50] To succeed, M’s analysis relies on a factual finding that there was abnormal growth of cut nerves which was a treatment injury. The District Court Judge rejected this finding on the basis of insufficient evidence. He undertook a careful analysis of the evidence in making these findings as I have outlined above. He preferred the evidence of the other medical experts to that of Dr Anderson who was advancing M’s argument. There was sufficient evidence for the Judge to reach his conclusions. Those factual findings were not nor should they be contested in this application.

[51] Therefore, I am of the view that the District Court Judge has not made an error of law. While it is possible to take parts of the Judge’s decision in isolation to argue

²² Definition from s 32 of the Act. See above, [12].

²³ Substantive appeal decision, above n 2, at [7] – [10].

he failed to consider whether a treatment injury could be a gradual process it is clear that the Judge considered this and rejected it on the facts.²⁴ When viewed as a whole the Judge did not overlook any relevant matter nor take into account some matter which was irrelevant to the proper application of the law. The statutory provisions have been correctly construed and interpreted and applied to the facts. The appeal is in reality an appeal against factual findings made.

Relevance of Corporation not making its original decision on “gradual process injury”

[52] The Corporation as its primary submission said that in M’s original application for cover the Corporation was not asked to consider whether there was a “gradual process injury”. It was only asked to decide if M had “a treatment injury”. Therefore, it submitted, this Court did not have the jurisdiction to consider the “gradual process” question on appeal. That question was never dealt with by the Corporation.

[53] Section 162 of the Accident Compensation Act which deals with appeals to the High Court does not refer to the original decision by a Corporation. It is concerned with the decision of the District Court. The District Court Judge here has expressly made a finding on s 20(2)(f) of the Act which relates to gradual process injury. I am of the view this Court has jurisdiction to consider the matter, regardless of whether the Corporation dealt with it squarely or not.²⁵

Is this a matter of sufficient public or private importance to justify a second appeal?

[54] M must establish that there is sufficient public interest or matters at stake to justify an appeal.²⁶ M argues that there are serious consequences for her if this application for special leave to appeal is not granted. The argument is that there is significant public interest in the matter because it relates to the correct test to be applied in claims for treatment injury involving surgical mesh. In fact, the case did not focus to any great extent on the surgical mesh involvement. It is a factual matter whether or not M suffered a treatment injury. The matter is of course important to M

²⁴ At [56].

²⁵ At [13].

²⁶ Cullen v Accident Compensation Corporation, above n 5, at [5].

as it affects her ability to receive compensation. However, that is not unusual in such a case.

[55] I do not consider that there is sufficient public interest or matters at stake to justify an appeal. There is no issue of principle at stake nor is there a reasonable chance of success.

Application for special leave to appeal – filed out of time

[56] The application for special leave to appeal was filed out of time. The Act at s 162 makes provision for appeal to the High Court on a question of law only as follows:

162 Appeal to High Court on question of law

(1) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(2) The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4) The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5) The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

(Emphasis added)

[57] The District Court decision dismissing M’s application for leave to appeal was delivered on 12 October 2017.²⁷ M’s application for special leave should have been filed in the High Court at Wellington on or before 5 pm on 2 November 2017. It was not.

[58] It appears that the notice for leave to appeal was emailed to the Wellington High Court registry on 2 November 2017 but was not accepted for filing on the basis

²⁷ Leave decision, above n 3.

it did not comply with the High Court Rules.²⁸ The notice was couriered to the High Court. It is not clear when the notice the arrived in the Wellington High Court registry.²⁹ It appears the solicitors were in Dunedin but chose to file in Wellington rather than Dunedin. Nevertheless, it was common ground that the notice was filed outside the time allowed.³⁰

[59] Mr Mijatov acting for M appropriately raised the issue and sought an extension of time for filing.

[60] The issue I must now deal with is whether time for filing the notice of application for special leave to appeal can and or should be extended in the circumstances.

[61] The case law points to the position that no extension of time may be granted by this Court for the filing of the application for special leave to appeal.

[62] Mr Mijatov submitted that a more flexible approach to allowing extensions of time should be taken in view of recent decisions. In particular he pointed to the recent Supreme Court authority in Almond v Read.³¹ The Supreme Court in that case indicated that where someone has a right to bring an appeal, the appeal must generally be heard on its merits. It commented this was an important background against which extension applications must be determined.³² The Supreme Court went onto comment that where a litigant attempts to exercise the right of appeal within the required time frame that misses the time limit by a day or two then a grant of an extension should be readily made.

[63] However, in Almond the Supreme Court was considering an application for an extension of time when the applicant was entitled to make that application pursuant to

²⁸ Rule 5.6 of the High Court Rules 2016 provides that a signed document must bear an original signature. Here, the notice of appeal was not accepted for filing because the emailed notice did not bear an original signature as required.

²⁹ The applicant says it was on 3 November 2017. The respondent says 6 November 2017. There is no evidence on the point. However, it is not material for present purposes.

³⁰ The Electronic Transactions Act 2002, s 22(2) does not apply here. It allows for electronic signatures if certain conditions are met.

³¹ Almond v Read [2017] NZSC 80; [2017] 1 NZLR 801.

³² At [36].

r 29A of the Court of Appeal (Civil) Rules 2005. That provision expressly permits an extension of time to be granted where the other party consents to that extension or if there is no consent the party is entitled to make an application. The Supreme Court in that case also noted that in most civil cases in New Zealand there is a right to a first appeal.³³

[64] In this case the statutory wording is mandatory. Under s 162 of the Act, the application “must” be made within the time prescribed. That requirement is fundamentally different to the provision considered in Almond. In addition, this case is dealing with a second right of appeal, rather than a right to a first appeal as was being dealt with in Almond. M has already had one appeal to the District Court. The factors taken into account in Almond do not have application here.

[65] M also argued that ACC had acquiesced or waived in the late filing. Counsel submitted that ACC was aware of the oversight in filing some time ago. Counsel for ACC has not expressly waived the statutory period for filing. It submits it cannot waive it because the filing time is a mandatory statutory period of 21 days. Waiver or acquiescence by the other party cannot confer jurisdiction by consent. I agree with that submission.

[66] The cases referred to in support of M’s argument for waiver included Jones.³⁴ This case did not hold that waiver would or might operate to allow an extension of the statutory time limit. The Court merely commented that “waiver was entirely a matter for the Corporation”.³⁵ However the Court did not make a determination on that point.

[67] In Armstrong Ellis J said:³⁶

[16] ... I have come to the same conclusion in relation to s 162(4). I consider that compliance with the time limit contained in that provision cannot be waived for the reasons that follow.

...

³³ At [36].

³⁴ Jones v ACC [2016] NZHC 973.

³⁵ At [11].

36. Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-0860, 5 September 2011.
    • [18] In particular it seems to me that the absence of any right to appeal, the fact that the applicant will already have been afforded one appeal and the relatively high threshold for obtaining special leave all point in favour of a provision such as s 162(4) being interpreted in a way that does not permit waiver of the time limit.

[19] Secondly, it is significant that the Act in which s 162 appears contains other provisions which expressly contemplate or permit the waiving of specified time limits.

...

[22] And lastly, the public interest considerations discussed by Glazebrook J in ([122] and [123]) of Howard are, I think, amplified in the context of ACC litigation. Not only is there the cost to the public of litigation generally that was noted by Her Honour but a specific additional public cost where a Crown entity such (sic) ACC is a litigant. As in the Howard case itself, the time limits cannot therefore be said merely to exist for private benefit.

[23] My conclusion as to my absence of jurisdiction is of course sufficient to dispose of Mr Armstrong’s application for special leave ...

[68] Previous decisions indicate that unless the statute in question permits an extension of time or does not limit the time prescribed for making an application, a failure to comply with the mandatory time period is fatal.³⁷ ACC has no power to waive that mandatory time limit. In Howard the Court of Appeal noted that the time frames under the Human Rights Act 1993 for filing and service a notice of appeal were mandatory and could not be extended by the Courts unless the statute expressly provides that discretion.³⁸ That legislation provided a similar statutory timeframe to that under consideration here. Glazebrook J said:

[100] As the timeframes for filing and service are set out in the HRA, they are mandatory. They cannot be extended by the Court as there is nothing in the HRA authorising such an extension ...

[105] ... No extensions of time for appealing are possible under 704(3), as s 123 limits the time for appealing and there is no provision permitting an extension. ...

[69] As the relevant mandatory time limit for the lodging of the notice are statutory it would be inappropriate for the Court to exercise its inherent powers to override the

³⁷ See Wyman v Accident Compensation Corporation of New Zealand HC Wellington CIV-2007- 485-451, 23 May 2007 per Simon France J at [7]: “... if the statutory scheme has its own time limits, they prevail”. Of similar effect Armstrong v Accident Compensation Corporation, above n 41, at [16] – [23].

³⁸ Attorney-General v Howard [2010] NZCA 58, [1011] 1 NZLR 58.

statute. The case law is clear on the mandatory nature of the time limit and the lack of any ability by the Court to extend time. The Court’s inherent jurisdiction should not be used to circumvent those requirements.

[70] Accordingly, the application for an extension of time to file the application for special leave to appeal must fail. I dismiss that application.

Conclusion

[71] Accordingly, I dismiss the application for special leave to appeal, for the following reasons:

(a) The application was filed out of time and time cannot be extended; there is no jurisdiction to hear M’s application, and

(b) If I am wrong, the proposed grounds of appeal do not raise an error of law.

Costs

[72] Counsel did not address me on costs. If the parties seek consideration of that issue or any other matter, leave is reserved to file submissions by the respondent on or before seven days from the date of delivery of this judgment and in reply by the applicant with seven days from receipt of the respondent’s submissions.






Grice J

Solicitors:

Young Hunter, Christchurch