Accident Compensation Corporation v Ng - [2019] NZHC 207

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-208

[2019] NZHC 207

BETWEEN ACCIDENT COMPENSATION COPORATION
Intended Appellant

AND

BRENDA NG and “L”

Respondents

Hearing: 18 February 2019

Counsel:

A S Butler and S J Thomson for ACC (Intended Appellant) B J Peck, L J Newman and E M Bransgrove for Respondents

Judgment:

19 February 2019

JUDGMENT OF CHURCHMAN J

[1] The Accident Compensation Corporation (ACC) applies for leave to appeal the judgment of this Court of 2 November 2018. That decision related to three appeals (Ng and “L” where ACC was the appellant and “HK” where ACC was the respondent).

[2] ACC does not seek to appeal that part of the decision relating to “HK” nor that part of the decision which held that there was no presumptive cover for treatment injury simply because the claimant demonstrates that he or she had suffered an injury during the course of treatment.

[3] In respect of the balance of the decision, ACC alleges that the Court erred in relation to its finding that the words “ordinary consequence” in s 32(1)(c) of the Accident Compensation Act 2001 (the Act) means a consequence of 50 per cent or greater chance of occurring.

ACCIDENT COMPENSATION COPORATION v NG and “L” [2019] NZHC 207 [19 February 2019]

[4]ACC allege a number of errors of law including:

(a)this interpretation amounted to a “paradigm shift” and cover for treatment injury that there was no legislative intention to provide for such a shift;

(b)that the interpretation provides cover for treatment if the consequence had less than the 50 per cent chance of occurrence irrespective of whether the treatment was properly (competently) given;

(c)the decision was inconsistent with the Court of Appeal’s decision in
Adlam v ACC;1

(d)the interpretative approach was “essentially statistic-focused” notwithstanding the Court held that a purely quantitative analysis was not correct;

(e)the Court erred in finding that “ordinary” must have an experiential component;

(f)rejecting the suggestion that “increased risk” or “reasonable risk” were not the same as an “ordinary consequence”’;

(g)focussing on the causative link between the treatment and the adverse outcome, the expense of the background risk of injury.

The law

[5] Section 163 of the Act provides that a party to an appeal before the High Court under s 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 the Court on a question of law only.

1 Adlam v ACC [2017] NZCA 457, [2018] 2 NZLR 102.

[6] It is not sufficient for the intended appellant to point simply to a possible question of law, but they must identify an issue that is capable of bona fide and serious argument, and which assumes sufficient importance to justify a further appeal.

[7]The required degree of importance can…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Accident Compensation Corporation v Ng and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 207
Decision Date: 19 February 2019

CaseChat Overview and Summary

The Accident Compensation Corporation (ACC) sought leave to appeal a decision of the High Court of New Zealand, Wellington Registry, concerning three appeals involving ACC as the appellant in two cases and the respondent in one case. The primary issue in the appeal was whether the Court had correctly interpreted the term "ordinary consequence" in section 32(1)(c) of the Accident Compensation Act 2001 to mean a consequence with a 50 per cent or greater chance of occurring. ACC argued that this interpretation amounted to a paradigm shift in the understanding of treatment injury cover, which was not intended by the legislature, and that it provided cover for treatment injuries even if the treatment was not given competently. The Court examined whether the proposed grounds for appeal involved questions of law and whether they were capable of serious argument. The Court found that most of the proposed grounds did not involve questions of law or were not seriously arguable. However, the Court identified one question of law that justified a further appeal to the Court of Appeal. The question was whether the Court was correct in concluding that the word "ordinary" in section 32(1)(c) meant a consequence that was "more probable than not".

The High Court granted leave to appeal to the Court of Appeal on the question of whether the Court was correct to conclude that the word "ordinary" in section 32(1)(c) of the Accident Compensation Act 2001 means a consequence that is "more probable than not". The Court emphasised that the test for determining "ordinary consequence" was a mixture of both qualitative and quantitative aspects and should be based on the actual presentation of the claimant. The Court held that the question of whether the term "ordinary" means more probable than not was a question of law that justified a further appeal. The Court did not make any order as to costs in relation to the application for leave to appeal.

Orders