Accident Compensation Corporation v Ng - [2018] NZHC 2848

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-208

[2018] NZHC 2848

BETWEEN ACCIDENT COMPENSATION CORPORATION and “HK”
Appellants

AND

BRENDA NG, “L” and ACCIDENT COMPENSATION CORPORATION

Respondents

Hearing: 8 and 9 October 2018

Counsel:

A S Butler, S J Thomson and N J Fenton for ACC B J Peck and L J Newman for Brenda Ng and “L” E M Bransgrove for “HK”

Judgment:

2 November 2018

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 2 November 2018 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:
John Miller Law, Wellington Russell McVeagh, Wellington

ACCIDENT COMPENSATION CORPORATION and “HK” v NG, “L” and ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2848 [2 November 2018]

TABLE OF CONTENTS

Background  [1]
Current wording of s 32  [16]
The parties’ positions  [18]
The three appeals  [25]
Interpretative approach  [28]
Origins of 2005 amendment  [41]
Analysis  [101]
Answers to questions  [103]
Application of findings to individual cases
Mrs Ng  [104]
“L”  [112]
“HK”  [122]

Costs [143]

Background

[1] In 1972, the Government of New Zealand embarked on a bold social experiment when it enacted the Accident Compensation Act 1972 (the Act).

[2] Prior to then, those who had been injured in accidents had limited options to address the consequences of the injuries they had sustained. For those in employment, there was potentially some compensation available from the Workers’ Compensation Act 1956. Others were obliged to resort to the Social Security System, and for those unable to access either structure, there remained the common law action for negligence.

[3] At the heart of the action in negligence was the concept of fault. Unless a claimant could prove that the accident which occurred to them was someone else’s fault, they could not succeed in obtaining compensation for their loss.

[4] A Royal Commission of Inquiry, chaired by Sir Owen Woodhouse, was set up to identify whether there was a more socially equitable method of compensating accident victims than the somewhat threadbare patchwork of existing options.

[5] The Commission’s report (The Woodhouse Report) made a number of recommendations which formed the basis of the Act.1 The Act has been described as a social contract or social compact.2 It removed the fundamental right of access to the courts to sue in negligence for personal injury caused by accident in return for coverage under a scheme which provided for compensation based on the injury rather than proof of negligence.

[6] The Act, and its various subsequent iterations,3 has always been the product of policy choices made by successive governments. It did not implement all of the recommendations of The Woodhouse Report, and cover was initially restricted to “earners” and those who suffered personal injury by motor vehicle accident. It did not extend to cover illness, even though the social consequences of chronic illness can be as debilitating as the consequences of accidental injury.

[7] Many of…

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.

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Details

Case: [2018] NZHC 2848
Decision Date: 2 November 2018

CaseChat Overview and Summary

The case of Accident Compensation Corporation v Ng involved three appeals concerning the interpretation of the term “ordinary consequence” in section 32(1)(c) of the Accident Compensation Act 2001. The appeals sought to determine the meaning of this term and its application in three specific cases where the Accident Compensation Corporation (ACC) had declined to provide cover for treatment injuries. The Court addressed several key issues, including whether the term “ordinary consequence” requires a statistical probability of 50 per cent or greater, the nature of the test for determining ordinariness, and the role of statistics in such assessments. The Court concluded that the term “ordinary consequence” refers to an outcome that is more probable than not, requiring a mixture of qualitative and quantitative analysis. The Court also emphasized the need for a generous and unniggardly interpretation of the Act, consistent with its purpose of providing compensation for personal injury without requiring proof of fault. In applying these principles to the individual cases, the Court found that the treatment injuries in each case were not ordinary consequences of the treatments provided, thereby affirming the lower court decisions and dismissing the appeals. Costs were left to be determined by the successful parties if they wished to apply for them.

Orders