Studman v Accident Compensation Corporation [2014] NZHC 574 (25 March 2014)

Last Updated: 13 May 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002706 [2014] NZHC 574

UNDER	The Accident Compensation Act 2001
IN THE MATTER	of an application for leave to appeal to the Court of Appeal pursuant to s 163 of the Act
BETWEEN	BRIAN FREDERICK STUDMAN Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	7 March 2014
Appearances:	H J Peart for the Appellant D Tuiqereqere for the Respondent
Judgment:	25 March 2014

_{JUDGMENT OF ELLIS J}

This judgment was delivered by me on 25 March 2014 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

H J Peart, Schmidt & Peart Law, Onehunga, Auckland

D Tuiqereqere, Medico Law Limited, Grey Lynn, Auckland

STUDMAN v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 574 [25 March 2014]

Introduction

[1] Mr Studman seeks leave to appeal my decision¹ dated 4 October 2013 in which I allowed an appeal by the Accident Compensation Corporation (ACC) against a decision of Judge Joyce QC granting cover to Mr Studman for “injury manifesting in the form of untoward and excessive left hand stiffness”. Leave to appeal that decision had been granted by Judge Beattie who noted:

... there is a significant question of law in issue, namely whether the requirement of a treatment injury being a personal injury, that is a physical injury, as required by s 26 of the Act, has been established as a matter of fact and law in this case based on the evidence as presented to the Court.

[2] The essence of my decision was that no physical injury causing the “stiffness” had been identified and that stiffness was not by and of itself a physical injury as required by s 26(1)(b) of the Accident Compensation Act 2001 (the Act).

[3] On 26 February 2014 Mr Studman’s newly instructed lawyer, Mr Peart, produced a report that had been prepared about Mr Studman’s case by Mr Bruce Peat, one of the doctors who had previously examined Mr Studman. . In that report, which was dated 15 February 2014, Mr Peat set out his view about the cause of the stiffness to Mr Studman’s three fingers. Mr Peat identified several potential causes of Mr Studman’s problems including “excessive tissue damage” which Mr Peat explained “would result in pain and stiffness”.

[4] After considering this new evidence, on 28 February 2014, ACC’s lawyer

wrote to Mr Studman’s lawyer advising that it would grant him cover for:

Excessive tissue damage resulting in pain and stiffness to the left little, ring and middle fingers.

[5] ACC also agreed to contribute towards Mr Studman’s costs and invited him to withdraw his application for leave.

[6] Mr Peart advised that Mr Studman wished nonetheless to pursue the intended appeal. The critical issue identified by Mr Peart, is:

¹ Accident Compensation Corporation v Studman [2013] NZHC 2598.

Whether personal injury for treatment injury purposes requires something beyond unusual and severe adverse consequences of surgical treatment.²

[7] This question is not, of course, quite the same as the one that had been posed by Judge Beattie, which was the focus of my earlier judgment.

[8] Mr Peart submitted that, notwithstanding that the issue was moot as far as Mr Studman himself was concerned, the question he has posed is of some considerable wider public importance. In particular he adverted to changes that were made in the

2001 Act to the relevant “medical misadventure” provisions of the Accident Compensation legislation and what he submitted was a consequent lack of clarity about the extent to which the earlier legislation (as articulated in the decided cases) still applied.

Mootness

[9] The position in relation to the pursuit of moot appeals was discussed in some detail by the Supreme Court in R v Gordon-Smith (on appeal from R v King).³ In that case (which also concerned an application for leave to appeal) McGrath J said:

[14] The traditional position taken in New Zealand has been that the courts will not hear an appeal “where the substratum of the ... litigation between the parties has gone and there is no matter remaining in actual controversy and requiring decision”. This approach was followed in accordance with a principle referred to in Sun Life Assurance Co of Canada v Jervis, where Lord Simon LC said:

[I]t is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.

[15] In 1999, in R v Secretary of State for the Home Department ex Salem, the House of Lords departed from the view that it would invariably be an improper exercise of appellate authority to hear appeals in relation to questions that have become moot. Speaking for all members, Lord Slynn said:

[I]n a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se ...

2. Although this was not the only question on which leave to appeal was sought, it was the one which came closest to the kind of question on which leave might be granted.

³ R v Gordon-Smith (on appeal from R v King) [2008] NZSC 56; [2009] 21 NZLR 721.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so ...

[16] As the passage cited from Lord Slynn’s judgment in Salem demonstrates, mootness is not a matter that deprives a court of jurisdiction to hear an appeal. Here, as already indicated, Ms Gordon-Smith, like the Crown, was a party to the Court of Appeal’s determination of the case stated appeal and has a right to apply for leave to bring an appeal to this Court. That disposes of any issue concerning jurisdiction. The question of whether this Court should hear an appeal which otherwise qualifies under statutory criteria for a grant of leave but is moot, is rather one of judicial policy. In general, appellate courts do not decide appeals where the decision will have no practical effect on the rights of parties before the Court, in relation to what has been at issue between them in lower courts. This is so even where the issue has become abstract only after leave to appeal has been given. But in circumstances warranting an exception to that policy, provided the Court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.

[17] The approach in Salem was said to be applicable where there is an issue involving a public authority as to a question of public law. It has been applied in New Zealand by the Court of Appeal, however, in a manner that has not been confined to public law. That Court agreed in Attorney-General v David to hear an appeal on a question of employment law of general and public importance, which warranted an early determination from the Court, although there were no longer live issues between the immediate parties.

[18] The main reasons for the general policy of restraint by appellate courts in addressing moot questions are helpfully identified by the Supreme Court of Canada in Borowski v Attorney-General. They are, first, the importance of the adversarial nature of the appellate process in the determination of appeals, secondly, the need for economy in the use of limited resources of the appellate courts and, thirdly, the responsibility of the courts to show proper sensitivity to their role in our system of government. In general advisory opinions are not appropriate.

[Footnotes omitted]

[10] It should perhaps be recorded at this point that in the Gordon-Smith case the application for leave to appeal was not opposed by the Crown due to the nature of the issue at stake. The decision in Gordon-Smith was one of those rare cases where leave to appeal was granted notwithstanding that the determination of the appeal would have no bearing on the appellant’s position.

[11] The general rule is therefore against the grant of leave where the relevant issue is moot. Mr Studman must therefore demonstrate that his case meets the high

threshold; namely that the question upon which leave is sought “is one of significant public importance which is highly likely to come before the Court again at some point”.

Applications for leave

[12] Section 163(1) and (2) of the Act read:

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2) If the High Court refuses to grant leave to appeal to the Court of

Appeal, the Court of Appeal may grant special leave to appeal.

[13] An appeal lies only on a question of law; a case must be stated. The question must be serious and arguable. The cases make it clear that in order to grant leave to the Court it must be satisfied that the proposed appeal:⁴

(a) raises some question of law or fact capable of bona fide and serious argument; and

(b) involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[14] Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.

Discussion

[15] Notwithstanding Mr Peart’s engaging and intelligent submissions I do not consider that leave should be granted in this case, for the reasons that follow.

[16] First, in light of the change in Mr Studman’s circumstances since my

_{judgment he no longer has a private interest in the appeal in any relevant sense.}

⁴ Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April

2006, at [18]. See also Khan v Accident Compensation Corporation HC Auckland CIV-2007-

485-1632, 14 August 2008.

Simply stating a case that asks whether or not Mr Studman had suffered a personal injury and/or medical misadventure under the Act, for example, would be wholly artificial.⁵

[17] Secondly, I consider it is dangerous and difficult to attempt to articulate a broader question of more general application. For example, I am far from certain that the question posed at [6] above⁶ can be answered helpfully, or in the abstract. That is because in many instances it will be quite clear that an unusual and severe consequence of surgical treatment does constitute personal injury. It will depend upon what the “consequence” is said to be by the relevant medical practitioners. The

cases are replete with examples where coverage has been given for an identifiable condition or injury that is the (unusual or severe) result of medical treatment.⁷

[18] Thirdly, it seems to me that the need for an identifiable “personal injury” in a treatment injury case (which was the focus of my judgment) has been made quite clear in a decision of the Court of Appeal which was delivered after my judgment in Mr Studman’s case. C v Accident Compensation Corporation was concerned with whether the mother of a child who was born with spina bifida which had not been detected on her 20 week scan had coverage under the Act. ⁸ As I have said, her claim was for treatment injury.

[19] After first carefully analysing the Supreme Court’s decision in Allenby v H,⁹

the Court of Appeal said at [32]:

[32] In our application of the statutory provisions to this case we intend to follow the methodology set out in the judgment of Blanchard J, a course urged on us by Mr Corkill QC for the Corporation. A claimant for cover must meet all three of the requirements in s 20(1) of the Act:

⁵ That is essentially the question referred to this Court by Judge Beattie and has, in the other cases, also constituted the relevant question stated for the Court of Appeal under s 163; see for example C v Accident Compensation Corporation [2013] NZCA 590; [2014] 2 NZLR 373.

⁶ That is, whether personal injury for treatment injury purposes requires something be yond unusual and severe adverse consequences of surgical treatment.

⁷ By way of example only I refer to MacDonald v Accident Compensation Corporation (1985) 5

NZAR 276 (HC); Viggars v Accident Compensation Corporation (1986) 6 NZAR 235 (HC) and Bridgeman v Accident Compensation Corporation [1993] NZAR 199 (HC). The severe and untoward consequences of medical treatment suffered by each of the claimants in those cases self evidently constituted (identifiable) personal injury.

⁸ _{C v Accident Compensation Corporation, above n5.}

⁹ Allenby v H [2012] NZSC 33 [2012] 3 NZLR 425.

• s 20(1)(a): he or she suffered personal injury in New Zealand on or

after 1 April 2002.

• s 20(1)(b): the personal injury is any of the kinds of injuries

described in s 26(1)(a), (b), (c) or (e).

• s 20(1)(c): the personal injury is described in any of the paragraphs in s 20(2).

[emphasis added]

[20] It seems to me that this is precisely the analytical process articulated in my judgment; there is no need for further appellate clarification.

[21] I accept that whether I was wrong in my assessment that the “stiffness” in Mr Studman’s hand did not constitute a sufficiently identifiable “personal injury” may yet be a matter for debate. But that is an issue that is particular to Mr Studman’s case; it cannot be said to be a matter of public importance or general principle. Rather, his case is best understood as one which demonstrates the need for some precision on the part of medical practitioners when providing opinions for ACC purposes. As Mr Studman’s own experience makes clear, once the doctor focussed on identifying what the “personal injury” was that he had suffered, cover was forthcoming.

[22] Accordingly, in my view the ordinary prerequisites for the grant of leave under s 163 cannot be met here. The even higher threshold required by virtue of the fact that the issues between Mr Studman and the Corporation have now become moot is, necessarily, quite unattainable. The application for leave is declined accordingly.

_{[23] There is no issue as to costs.}

Rebecca Ellis J