|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 6 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-004537 [2014] NZHC 280
UNDER The Accident Compensation Act 1982
IN THE MATTER of an application for leave to appeal to the
High Court pursuant to s 111 of the Act
BETWEEN MICHAEL JOHN JONES Applicant
AND ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 5 February 2014
Appearances: Applicant in person
C Hlavac for the Respondent
Judgment: 25 February 2014
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on Tuesday 25 February 2014 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:...............................
Counsel/Solicitors:
C Hlavac, Young Hunter Lawyers, Auckland
Copy to: The Applicant
JONES v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 280 [25 February 2014]
[1] On 3 September 1987 the Accident Compensation Appeal Authority
(the ACAA) dismissed an appeal by Mr Jones in relation to
his claim for medical
misadventure under Accident Compensation Act 1982 (the 1982 Act). The medical
misadventure for which Mr Jones
had sought cover related to an adverse reaction
he had apparently had, in 1979, to the drug Sinequan. It is evident from the
ACAA’s
decision that his claim had two facets, namely that:
(a) His physical1 and psychological reaction to the drug
was rare and severe;
(b) His adverse reaction had been caused by an underlying condition,
Lown-Ganong-Levine syndrome (LGLS), which his doctor
(the doctor who
prescribed the Sinequan) had been negligent not to have diagnosed.
[2] In the 1987 decision, Judge Middleton upheld the position
taken by the Accident Compensation Corporation (ACC) declining
Mr Jones’
medical misadventure claim.
[3] Mr Jones’ appeal rights in relation to this decision were
governed by s 111 of the 1982 Act, which provided:
111 Appeal to High Court
(1) Where any party is dissatisfied with any order or decision of the
Accident Compensation Appeal Authority, that party
may, with the leave of
the Authority, appeal to the High Court against that order or decision:
Provided that, if the Appeal Authority refuses to grant leave to appeal, the
High Court may grant special leave to appeal.
(2) The Appeal Authority or the High Court, as the case may be, may
grant leave accordingly on a question of law or if in its
opinion the question
involved in the appeal is one which by reason of its general or public
importance or for any other reason ought
to be submitted to the High Court for
decision.
(3) ...
(4) Every such appeal shall be made by
giving notice of appeal within 28 days after the date on which the appellant was
notified
of the order or decision appealed against or within such further time
as the Appeal Authority or the Court may allow on application
made either
before or after the expiration of those 28 days.
(5) In its determination of any appeal, the Court may confirm, modify,
or reverse the order or decision appealed against, and,
subject to section 112
of this Act, the decision of the Court shall be final and conclusive.
(6) Subject to the provisions of this section, the procedure in
respect of any such appeal shall be in accordance with the
rules of the
Court.
[4] By virtue of s 391 of the Accident Compensation Act 2001 (the 2001
Act)
s 111 continues to apply to Mr Jones’ case.
[5] It will be observed that under s 111:
(a) Leave from the ACAA or special leave from this Court is
a prerequisite to bringing an appeal from an order or
decision of the
ACAA;
(b) Any such appeal is limited to: (i) a question of law; or
(ii) a question which, in the view of either the ACAA or the High Court
(as the case may be), by reason of its general or public
importance or for any
other reason ought to be submitted to the High Court for decision.
(c) a person who wishes to appeal has 28 days from the date of the relevant decision to notify (in the first instance) the ACAA of any application for leave to appeal; but
(d) the ACAA or the High Court may, in their discretion, extend the
time for making an application for leave or for special
leave, as the case may
be.
[6] In Mr Jones’ case, he did not notify the ACAA of any
application for leave to appeal either in the 28 day period following
Judge
Middleton’s 1987 decision or for some considerable time thereafter.
Indeed, it was not until some 26 years later that
leave was sought.
Necessarily, Mr Jones was also required to apply for an extension of time for
making the leave application.
[7] On 4 October 2013, Mr Jones’ application was declined by the
ACAA (Judge
Beattie). The Authority’s decision is brief, and I set it out in full.
Judge Beattie said:
[1] In an application dated 10 June 2013, the applicant lodged an application with the Accident Compensation Appeal Authority for leave to appeal out of time to the High Court in respect of the decision of Judge A W Middleton of the Accident Compensation Appeal Authority dated 3
September 1987.
[2] It is of course the case that this application for leave to appeal
has been lodged nearly 26 years after the decision in
question was made.
[3] The applicant has made an application pursuant to Section 111 of
the Accident Compensation Act 1982, and where by subsection
(4) a Notice of
Appeal is required to be lodged within 28 days after the date on which the
decision appealed against was notified
to the applicant, although it is the case
that the Appeal Authority does have the right, in certain circumstances, to
allow an application
to be lodged outside that 28 days.
[4] It is also the case, and the one which I find to be the most
relevant factor in this application, that the requirement
for an appeal to the
High Court can only be made where the question in issue is a question of
law.
[5] The decision of Judge Middleton which is being sought to
be appealed to the High Court was a decision relating
to whether or not the
appellant had suffered a personal injury for which he was entitled to cover,
being a personal injury suffered
by way of medical misadventure.
[6] I have considered the evidence and the decision of Judge Middleton in this case, and I find that it is wholly a decision based on facts as to whether or not the circumstances of the appellant’s condition was one which established on the facts that the condition of medical misadventure had occurred, and therefore whether there was a factual basis for the granting of cover under the Act. He ruled that the evidence did not establish that the condition of medical misadventure had occurred.
[7] By reason of the fact that the Notice of Appeal is not one where
it can be determined that the question in issue is a question
of law, I
therefore rule that the application for leave to appeal to the High Court is
declined.
[8] It must, I think, be said that it is not entirely clear from this
decision whether Judge Beattie was declining Mr Jones’
application for an
extension of time or his application for leave, or both. While in [3] he refers
to the need for an extension
of time, his discussion and conclusion (at [7])
appears to be concerned more with the substantive requirement for leave. The
more
logical view appears to me to be that he determined both questions against
Mr Jones. That conclusion reflects the reality that the
merits of the proposed
leave application are relevant to the prior question of whether an extension of
time should be granted.
[9] In any event, Mr Jones now applies to this court for special leave
to appeal Judge Middleton’s decision. Again, as
a prior issue, it is
necessary for him to satisfy the Court that an extension of time for making that
application should be granted.
It is therefore to that issue that I turn
first.
Extension of time
[10] In McDougall v Accident Compensation Corporation this Court
discussed the factors that were to be weighed when determining whether to grant
an extension of time for lodging an application
for review.2 In
my view, they apply equally in relation to applications for leave under s 111.
The relevant factors are:
(a) the length of the delay; (b) the reasons for the delay;
(c) the strength and merits of the case on review (or appeal);
and
(d) any prejudice arising to the Corporation in the event that an extension
were granted.
Discussion
[11] The starting point appears to me to be that a delay of 26 years is,
on any analysis, extraordinary.3 It seems that no explanation for
the hiatus was provided to the ACAA and, no doubt, it is for that reason that
the learned Judge does
not discuss it.
[12] Annexed to Mr Jones’ application for special leave, however,
was a very lengthy psychological report that has been
prepared (as I understand
it, at a cost of some $10,000 to ACC) by a clinical psychologist, Mr Ted Mason.
In it, Mr Mason refers
(inter alia) to the previous involvement of the
psychiatrist Dr Laurie Gluckman in aspects of Mr Jones’ historical
dealings with ACC. As Judge Middleton’s 1987 decision makes clear, Dr
Gluckman in fact prepared two reports in relation to
the medical misadventure
claim which Mr Jones now wishes to pursue on appeal.
[13] As is tolerably well known, Dr Gluckman was the subject of
disciplinary proceedings in 1990. More relevantly, his involvement
with, and
work for, ACC was the subject of review and criticism by Judge Peter Trapski in
his 1994 Report of the Inquiry into the Procedures of the Accident
Compensation Corporation.
[14] Mr Jones referred me in this respect to an (interim) ACAA decision
in which, because of Dr Gluckman’s earlier involvement
with the claimant
(Mr Evans), and based on a report by Mr Mason, the Authority referred the
matter back to the Corporation for consideration
of an ex gratia
payment.4
[15] As the Evans decision itself makes clear, however, Judge Trapski had prepared a specific report about Mr Evans’ interaction with Dr Gluckman which contained specific criticism of the way the doctor had handled his particular case. There is no such report in relation to Mr Jones. Moreover, in Mr Jones’ case, the existence of Mr Mason’s report cannot really assist on the issue of delay. As in
Evans, Mr Mason’s report about Mr Jones was written in
1996, nearly 20 years ago
3 I accept, however, it is not entirely without precedent, as the decision in Morgan shows. There, special leave to appeal the ACAA’s refusal of an extension of time in the case of a 30 year delay was declined.
4 Evans v ACC ACAA 10/2000, 18 May 2000.
Presumably it has been in Mr Jones’ possession since that time and yet
he did not
take action.5
[16] Lastly, as Judge Middleton’s 1987 decision makes clear, Dr
Gluckman’s involvement in Mr Jones’ case was
far from determinative
of his claim; the two reports written by him merely appear to have endorsed what
several other medical practitioners
had said. On my reading of the decision it
is impossible to imagine that the ACAA would have reached a different
conclusion, had
they not been obtained.
[17] There is accordingly, no material before the Court upon
which I could conclude that the very significant delay
in seeking leave to
appeal is explicable or justified.
[18] The length of the delay would also, in my view, inevitably prejudice
the Corporation if leave were to be granted. Mr Hlavac
advised that ACC
(unsurprisingly) no longer have copies of the relevant reports and documents.
Moreover, the possibility that the
Corporation might be required, if the
substantive appeal were permitted to proceed (ie both an extension of time and
leave to appeal
were granted) to consider and determine a claim for weekly
compensation for an injury suffered 35 years ago (in 1979) cannot lightly
be
countenanced.
[19] In terms of the merits of the proposed appeal, I agree with Judge
Beattie that Judge Middleton’s decision appears to
have turned on its
facts. But I acknowledge that Mr Jones nonetheless did attempt to articulate
points of law and matters of public
importance which, he said, arose from the
decision and which warranted such a late appeal. In summary these were
that:
(a) Judge Middleton erred in his interpretation and application of
the
concept of “medical misadventure”; and
(b) the role played by Dr Gluckman in the case gives rise to a question of
general or public importance.
5 The Evans decision itself was given in 2000; there was clearly no issue of excessive delay.
[20] I have dealt with the latter point already, above. A
reading of Judge Middleton’s decision makes it clear
that Dr
Gluckman’s role was a subsidiary one; the views he expressed were merely
supportive of others. I consider it highly
unlikely that his reports made a
difference to the outcome.
[21] As far as the former point is concerned, it may be noted that, in
1987, the essential elements of “medical misadventure”
was bad
fortune or mishap for the patient of a kind where: 6
(a) the event that occurred was so unusual and unlikely that it could
properly be described as a mischance or bad fortune (it is rare);
or
(b) the risk of a minor adverse consequence was likely, but the actual
consequence was grave or severe; or
(c) the injury is suffered as a result of medical error or
negligence.
[22] In Mr Jones’ case, the Judge’s application of this law
was, in my view, clearly based on the numerous medical
opinions before him. The
decision makes it tolerably plain that:
(a) on the basis of the cardiologists’ evidence, there was no
negligence in any failure by Mr Jones’ doctor to diagnose
LGLS;7
(b) although Mr Jones’ reaction to the Sinequan was rare:
(i) the cardiological symptoms suffered by Mr Jones were transitory
and there was no lasting or permanent damage;
(ii) the longer term emotional distress suffered by Mr Jones as a result of
the cardiological event involved an aggravation of his
6 MacDonald v Accident Compensation Corporation (1985) 5 NZAR 276 (HC); and Viggars v
Accident Compensation Corporation (1986) 6 NZAR 235 (HC).
7 At least one of the doctors doubted the LGLS diagnosis altogether.
pre-existing depression and anxiety and was not predominantly caused by that
event.
[23] In my view, therefore, there are no tenable questions of law or
questions of
public importance raised by Mr Jones’ proposed appeal.
Special leave
[24] Although the conclusion I have expressed in the preceding paragraph
suffices to deal with the matter, I briefly, and for
completeness, consider the
issue of special leave.
[25] In Kenyon v Accident Compensation Corporation Fisher J
recorded (at [15]) his agreement with the submissions he had received as to the
effect of the authorities relating to special
leave. 8 They were
that:
(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle 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 Dairy 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: Avery 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).
[26] This continues to be an accurate and useful summary of the
relevant principles.
8 Kenyon v Accident Compensation Corporation [2001] NZHC 1301; [2002] NZAR 385 (HC) at [15].
[27] In my view, granting Mr Jones special leave to appeal
would not be consistent with ensuring that scarce judicial
time is allocated
sensibly because:
(a) there is no discernible issue of principle at stake;
(b) there is nothing before me to suggest that cover of any significant
amount is at issue;
(c) the proposed appeal has no reasonable prospect of success;
and
(d) no extraordinary factor which was not properly taken into account by the
ACAA has been identified.
[28] For essentially the same reasons, Mr Jones has been unable to show
that
(special) leave is required in the interests of justice.
Summary
[29] For the reasons I have given I decline to grant Mr Jones an
extension of time for applying for special leave to appeal Judge
Middleton’s 1987 decision. Were it necessary for me to determine the
matter I would also decline the application for special
leave
itself.
[30] There is no issue as to
costs.
Rebecca Ellis J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2014/280.html