Alliance Group Limited v Feaver
[2025] NZHC 97
•10 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-167
[2025] NZHC 97
BETWEEN ALLIANCE GROUP LIMITED
Appellant
AND
SHONA FEAVER
First Respondent
AND
ACCIDENT COMPENSATION CORPORATION
Second Respondent
Hearing: 9 December 2024 Appearances:
H A Evans for Appellant
P J Sara for First Respondent (By way of VMR) No appearance for Second Respondent
Judgment:
10 February 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 10 February 2025 at 11 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ALLIANCE GROUP LIMITED v FEAVER [2025] NZHC 97 [10 February 2025]
Introduction
[1] The first respondent, Shona Feaver, has worked for many years as a meat packer, employed by the applicant, Alliance Group Ltd (AGL).
[2] In 2015 she filed a claim for cover under the Accident Compensation Act 2001 (the Act) for a work-related gradual process injury, described as “shoulder impingement bursitis”. The appellant (which is an accredited employer as defined in the Act) declined the claim for cover in October 2015. That decision was upheld on review.
[3] In June 2018, Ms Feaver appealed the review decision to the District Court. On 18 December 2023, Judge C J McGuire allowed Ms Feaver’s appeal (the District Court decision).1 AGL then applied for leave to appeal the District Court decision.
On 26 March 2024, Judge Spiller declined AGL’s application for leave to appeal.2
[4] AGL now applies to this Court for special leave to appeal the District Court decision, pursuant to s 162 of the Act.
Background
[5] To understand why AGL says there were errors of law in the District Court decision, it is necessary to outline, in some detail, the history of Ms Feaver’s claim and the findings of the medical reports which are relied on by the respective parties to support or oppose it.
[6] Ms Feaver began working for AGL in the 1997/98 season, initially as a labourer. From 2000 onwards, she worked as a meat packer, placing cuts of meat into a carton and transferring filled boxes onto a conveyer belt. She also undertook work in the carton room, assembling cardboard cartons and installing plastic liners in them.
[7] Ms Feaver’s medical history reveals longstanding problems with her shoulders. On 9 March 1995, she underwent a left shoulder arthroscopy where it was found she
1 Feaver v ACC [2023] NZACC 210.
2 Feaver v ACC [2024] NZACC 051.
had a “marked prominence of the anterior acromion with impingement up on the upper surface of the cuff.” She had further surgery on 10 May 1995 which involved a “formal anterior acromioplasty” and a “cuff repair” procedure. Mr Denholm, her orthopaedic surgeon, reported that an x-ray showed “extensive congenital fusion of the C3-C6 vertebrae” which he considered to be “very likely … the cause of much of the pain you are getting in your neck and out to your arms.”
[8] On 17 March 2013, Ms Feaver injured her right shoulder when she tripped and fell in the bath. She was diagnosed by her GP with a rotator cuff sprain and ACC accepted cover for her injury. As part of her treatment for this injury, Ms Feaver’s shoulder was x-rayed and was the subject of an ultrasound investigation.
[9]Dr Parker, the radiologist, reported on the ultrasound saying:
There is sonological evidence of impingement with bursal thickening on abduction of the arm.
In respect of the x-ray, Dr Parker said:
There is sclerosis of the greater tuberosity of the humerus. There is irregularity of the AC joint and early degenerative changes seen in the glenohumeral joint.
[10] On 12 December 2013, Ms Feaver injured her right shoulder while lifting a carton of meat at work (the December 2013 injury). On 9 January 2014 her GP filed a claim for cover with AGL for a sprain.
[11] AGL accepted the claim on 25 March 2014. Again, an ultrasound scan was undertaken, but it revealed no bony injury which suggested that any sprain or strain was minor.
[12] On 28 March 2014, Dr Simon Newburn, who specialised in occupational medicine, reviewed Ms Feaver’s medical history and concluded that the December 2013 injury:
… resulted in an aggravation of a pre-existing pain symptom complex of the right shoulder. Any strain or sprain which may have occurred at this time would have been mild and recovered within 3–4 weeks, and we can be reassured by the negative [ultrasound] findings in January 2014. I note also
some degenerative changes present in the right shoulder imaging which is not related to any particular injury event and may contribute to the pain symptom complex.
[13] On 10 April 2014, after receiving further medical reports, AGL advised Ms Feaver that it was declining her ongoing entitlements under the Act as it was not satisfied that they were injury-related but rather due to “underlying pre-existing factors”. Ms Feaver sought a review of that decision.
[14] Prior to the review hearing, Ms Feaver sought a further medical opinion from Dr Rod Nicholson, an occupational medicine specialist. He concluded that the December 2013 injury had not caused the ongoing pain in Ms Feaver’s right shoulder. Instead, he said:
… the lifting incident in December has resulted in an aggravation of her subacromial bursitis and it is her bursitis, known to be a degenerative process, which has persisted and has resulted in her continuing to experience pain.
[15] The review application was heard and, in a decision which issued on 29 March 2015, the reviewer dismissed Ms Feaver’s claim for ongoing support for the December 2013 injury, saying:
AGL has met the onus of establishing that it had sufficient information to be “not satisfied” that Ms Feaver was entitled to receive ongoing entitlements and the recent information does not show that that decision is no longer correct. Ms Feaver’s application for review is … dismissed.
[16] After receiving this decision, Ms Feaver filed a work-related gradual process injury claim with AGL in respect of her right shoulder pain. Her treatment provider, Dr Stout, GP, described her condition as “shoulder impingement” saying it was due to “repetitive work involving abduction/flexion of shoulders to > 60 degrees”.
[17] Dr Newburn then provided a further report dated 12 October 2015 which reviewed Ms Feaver’s medical history and the type of work she undertook. He concluded that her work:
… simply does not have a sufficient exposure to significant abduction and flexion of more than 60֠ that is required as demonstrated by my literature review to increase risk of the condition of shoulder impingement (bursitis).
I therefore reach the opinion that Shona’s work situation was unlikely to have contributed to the cause or caused Shona’s right acromial bursitis. More likely in the course of Shona’s work she has rendered symptomatic a previously asymptomatic and degenerative bursitis.
[18] As a result of this report, AGL did not accept that Ms Feaver’s employment task caused or contributed to her injury and it declined her claim for cover.
[19] On 21 December 2015 Ms Feaver filed a review application challenging this decision. The review process was somewhat protracted as there was a dispute over exactly what tasks were undertaken as part of Ms Feaver’s work.
[20] In early 2018 a more detailed description of Ms Feaver’s work tasks was prepared as an agreed statement of facts, and this was referred to Dr Nicholson in April 2018. However, he still felt unable to give a specific opinion on whether these tasks caused Ms Feaver’s injury because the total exposure to the tasks was unknown.
[21] On 20 June 2018 Ms Feaver’s application for review was dismissed. The reviewer said:
Both Dr Newburn and Dr Nicholson noted that age-related degeneration was a relevant factor in the development of Ms Feaver’s subacromial bursitis.
I therefore conclude that there is insufficient evidence that Ms Feaver’s meat packing contained a particular property or characteristic that caused her subacromial bursitis.
[22] In due course, Ms Feaver appealed the 15 October 2015 decision of AGL declining her cover for a gradual process work-related injury.
[23] Ms Feaver then obtained a further report from Professor Gorman, an occupational physician, and Dr Stuart Walsh, an orthopaedic surgeon. In their November 2021 report they reviewed all the earlier reports and Ms Feaver’s evidence regarding her work tasks. They said that Ms Feaver had been “inadequately assessed both clinically and radiologically” and they concluded that, while it was easy to blame age as a cause for her shoulder impingement “in this case it is more likely that her repetitive overload work exposure is the primary cause”.
[24] AGL then commissioned an opinion from Dr John Heydon, an occupational physician. In his January 2023 report he reviewed Ms Feaver’s medical history and the various reports which had been prepared and undertook a literature review of the causes of subacromial bursitis, and whether repetitive work alone was a likely cause of it as opposed to work where there was consistent shoulder postures of more than 60 of flexion or abduction. He agreed that Ms Feaver’s work as a packer was repetitive but said it did not involve elevated arm movements. In his opinion:
… the risk of developing bursal thickening does not appear to be significantly greater for those who do the task that Ms Feaver did compared to those who do not do those tasks.
[25] His report stated that the abnormalities reported on the imaging studies of Ms Feaver’s right shoulder appeared to be due wholly or substantially to the aging process with no or only a small contributory cause coming from her work. He concluded:
In my opinion, Ms Feaver’s work may have aggravated or rendered symptomatic the changes seen on imaging, but it does not appear that her work caused or significantly contributed to the cause of her right shoulder abnormalities reported on imaging, and in my opinion, these appear more likely to be due to the aging process.
[26] On 8 February 2023 Professor Gorman responded to Dr Heydon’s report. While he observed that Dr Heydon’s literature review was both “thorough and commendable”, he noted the absence of high-quality epidemiological evidence on which to test whether the condition “is more likely to occur in a particular worker group or with a particular work activity”, as required by s 30(2). He maintained his view that Ms Feaver’s work activities were “entirely consistent with her current musculoskeletal problems”.
The District Court decision
[27] Ms Feaver’s appeal was heard by Judge C J Maguire in the District Court on 3 October 2023. It is this decision which AGL seeks leave to appeal.
[28] The District Court decision traversed the history of the claim, including the shift from a specific injury claim to a work-related gradual process injury claim. The
Judge also set out the conclusions of the various reports which had been provided by Dr Nicholson and Professor Gorman for Ms Feaver, and by Dr Scott Newburn and Dr Heydon for AGL.
[29] However, the actual decision was brief, not referring to any of the expert evidence, or, in any detail, to the statutory test. It read as follows:
[101]The ultimately question though is whether what occurred on that day caused or contributed to her bursitis.
[102]I find that Mr Sara is right to challenge the proposition that because degeneration causes bursitis, that the bursitis condition cannot be caused or contributed to by accidents, whether acute accidents or work related gradual process ones.
[103]Mr Sara posed an example of someone with a tendon tear in the shoulder who falls over in the garden and as a result, the tear is extended from two to five centimetres. He rightly submits that that person is entitled to cover for the new accident caused portion of the tear.
[104]He submits that what is intended by the legislation is to grant cover where it is appropriate. He accordingly submits that the appellant has made out her claim for cover in this case on account of the trauma she suffered when she lifted that carton of meat at approximately 3.45pm on 12 December 2013.
[105]I therefore find on the balance of probabilities that the appellant has proved that her accident that day, evidenced by the immediate pain from lifting the box of meat, caused or contributed to her bursitis.
[106]For the purposes of s 30, I find that she was performing an employment task that had a particular property or characteristic, the lifting and turning with boxes containing 27 kgs of meat and that on this occasion, her work task contributed to the cause of personal injury and that because of the repetitive nature of the work, the risk of suffering personal injury is significantly greater for a person in the appellant’s cohort who performs the employment task than for persons who do not perform it.
The application for leave to appeal
[30]Section 162 of the Act relevantly provides:
(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.
…
(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
[31] The principles applying to an application for leave to appeal are well established. They were summarised by Fisher J in Kenyon v ACC as follows:3
(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;4
(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;5
(c)the fact that special leave is required as significant and suggests that leave ought not to be granted as a matter of course;6
(d)it is for the applicant to show that leave is required in the interests of justice;7
(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 taken into account.8
[32] Leave is not to be granted as a matter of course. As was said in Cullen v Accident Compensation Corporation:9
… the Court will exercise its power [to grant special leave], if 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. Other relevant considerations include the desirability of finality of litigation and the overall
3 Kenyon v ACC [2002] NZAR 385 (HC) at [15].
4 Sandle v Stewart [1982] 1 NZLR 708 (CA).
5 Sandle v Stewart above n 4; Manawatu Co-op Dairy Co Ltd v Lawry [1988] DCR 509; Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).
6 O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464 (HC).
7 Avery v No. 2 Public Service Appeal Board [1972] 2 NZLR 86 (CA).
8 Brown v Chow Mein Fashions Ltd¸above n 5.
9 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].
interests of justice. The primary focus is on whether the question of law is worthy of consideration.
[33] That said, as I observed in the decision Gilmore v Accident Compensation Corporation:10
[I]t is not necessary to show that a decision was wrong, but only that there is an arguable question of law which is of sufficient importance to outweigh the cost and delay of a further appeal.
[34] In the present case, AGL argues that the following two questions of law arise and justify leave to appeal being granted:
(a)the District Court failed to provide reasons as to why the respondent’s expert medical evidence should be preferred over AGL; and
(b)the District Court failed to apply the statutory test under s 30 of the Act for whether a gradual process injury had occurred to determine that Ms Feaver had suffered a work-related gradual process injury.
Gradual process injury claims — the law
[35] Section 20 of the Act provides that a person is covered for a personal injury if it is one of the defined categories of injury set out in s 20(2) including:
(e)personal injury caused by work-related gradual process, disease, or infection suffered by a person:
[36]Section 26(1) defines personal injury in several ways including:
(b)physical injury suffered by a person, including, for example, a strain or a sprain; …
[37] However, s 26(4) excludes the following from the definition of personal injury covered by the Act:
(a) personal injury caused wholly or substantially by the aging process…
10 Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [55].
[38] Section 30 (as in force at the relevant time) then goes on to give a more detailed definition of what comprises a personal injury caused by a work-related gradual process, disease, or infection. The relevant parts of that section state as follows:
30Personal injury caused by work-related gradual process, disease, or infection
(1)Personal injury caused by a work-related gradual process, disease, or infection means personal injury—
(a)suffered by a person; and
(b)caused by a gradual process, disease, or infection; and
(c)caused in the circumstances described in subsection (2).
(2)The circumstances are—
(a)the person—
(i)performs an employment task that has a particular property or characteristic; or
(ii)is employed in an environment that has a particular property or characteristic; and
(b)the particular property or characteristic—
(i)causes, or contributes to the cause of, the personal injury; and
(ii)is not found to any material extent to the non-employment activities or environment of that person;
(iii)may or may not be present throughout the whole of the person’s employment; and
(c)the risk of suffering the personal injury is
(i)significantly greater for persons who perform the employment task than it is for persons who do not perform it; or
(ii)is significantly greater for persons who are employed in that type of environment than it is for persons who are not.
[39] As Mr Evans, counsel for the applicant, submits, s 30(2)(c) requires a risk assessment. That assessment must compare the risk of suffering the gradual process
injury for people who perform employment tasks with the same characteristics as those performed by the claimant as against persons who do not perform those tasks.
[40] As was explained in Knox v Accident Rehabilitation and Compensation Insurance Corporation,11 the test for establishing whether a personal injury has been caused by gradual process under the equivalent section in earlier legislation, s 7(1)(c), was as follows:12
The first [step] is to assess the risk of a person carrying out the relevant work task in the relevant work environment developing the injury concerned, say x. The second step is to assess the risk persons who do not perform that task in that environment have of suffering from that personal injury, say y. The third step is to decide whether x is “significantly greater” than y. If it is, s 7 (1)(c) is satisfied. If not, then a claim for cover must fail.
[41] In Turner v ACC, Judge Ongley discussed the approach to be taken to the risk assessment saying:13
… if there is expert opinion either that an aspect of the tasks poses a special risk, or that epidemiological studies show that there is a palpably greater risk for the occupational group measured against the general population, excluding persons doing that task, then the test would be satisfied without requiring proof that the difference is major or substantial. In my view, that is the meaning ascertainable from the text of the statute in the light of its purpose.
[42] An example of the way the Courts undertake that risk assessment can be seen in Simmons v ACC.14 There, Judge Powell (as he was then), held that where evidence identified the risk for the claimant, a shearer, of developing sciatica, leading to lower back pain, was 20 to 40 per cent higher than for the population which did not undertake that type of work, the test of the risk being “significantly greater” for the purposes of s 30(2)(c) was satisfied.
[43] In reaching that conclusion, Judge Powell considered the evidence of studies into the relationship between the effects of an individual’s occupation and lumbar disc degeneration and accepted the evidence of a study undertaken by the United States
11 Knox v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAR 609 (HC).
12 At [23].
13 Turner v Accident Compensation Corporation DC Wellington Decision 229/2007, 1 October 2007, at [62].
14 Simmons v ACC [2015] NZACC 181.
National Institute for Occupational Safety and Health which in turn considered a study of 13,000 male pairs of twins to ascertain the likely contribution of work involving heavy physical demands and heavy lifting to degeneration of the spine. He accepted the expert evidence that such workplace factors increased the risk by 20 to 40 per cent and rejected the suggestion that such an increase was insufficient for the purposes of s 32(c).
[44] Bearing the statutory test in s 30 in mind, I now turn to the alleged errors of law which are relied on to seek leave to appeal.
Did the Judge fail to give reasons for preferring the conclusion of one expert over another?
[45] The first alleged error of law is said to be that the Judge failed to give reasons as to why he preferred the conclusion of one expert over another.
Appellant’s submissions
[46] Mr Evans says this is a case where there were competing opinions from Drs Newburn and Heydon, on behalf of the accredited employer AGL, and Dr Nicholson and Professor Gorman, on behalf of Ms Feaver. In his submission, the Judge was required to analyse the evidence they each presented and make reasoned findings on the basis of that analysis.15 This did not happen here.
[47] Mr Evans says that the failure to give adequate reasons is, itself, a “self-standing ground of appeal” and, here, the failure to provide reasons as to why the evidence of AGL’s medical experts was not accepted constitutes an error of law which is arguable on appeal.16
Respondent’s submissions
[48] Mr Sara, for the respondent objects to this ground of appeal, saying it was not put forward to the District Court on the substantive leave application. For this reason, it should not be allowed to proceed before this Court.
15 Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 374 (CA).
16 At 378.
[49] He also says that it is a mischaracterisation to say Ms Feaver’s claim “relied on the same injury event” as the December 2015 injury claim. It was a claim for bursitis, but the December 2013 injury was important from an “evidentiary” point of view.
Discussion
[50] Although I was not provided with the original application for leave to appeal, Judge Spiller, who heard the application, set out the grounds on which leave was sought. These included that the Judge “provided inadequate reasoning to support his finding that Ms Feaver satisfied the requirements of s 30 of the Act governing work-related gradual process injury … [and he] failed to … justify his findings with adequate medico legal reasoning”. While not expressed in precisely the same way, I am satisfied that, in general terms, the lack of reasoning, including in relation to the medical evidence, has been identified throughout and there is no impediment to it being pursued in this application.
[51] Significantly, Mr Sara does not suggest the expert evidence was fully analysed or that reasons given for preferring one expert over another. Rather, he suggests that the Judge was entitled to adopt a “common sense approach” in finding the s 30 test had been met, something which I address in dealing with the second ground of appeal.
[52] However, the material part of the decision cited at [29] above, does not appear to address the expert evidence at all, nor say why one party’s experts’ opinions are preferred over the others. Indeed, the Judge’s reasoning appears to ignore reference to the expert evidence and focus on the December 2013 injury as proving the cause of the bursitis, when in fact none of the experts describe this as the cause of the bursitis and Dr Nicholson expressly disavowed the relevance of the shoulder sprain or strain in his 20 October 2014 report while Dr Gorman was of the view that Ms Feaver’s 17 seasons of meat packing with repetitive lifting contributed to her shoulder pain and dysfunction.
[53] In the decision in Flannery v Halifax Estate Agencies Ltd, there was a dispute between rival experts concerning the cause of cracks in a flat.17 The trial Judge stated he preferred the defendant’s expert and dismissed the claim without giving reasons for that decision. In allowing the appeal, the Court of Appeal commented on the lack of reasons and made the following observations on why reasons should be given:
(1)The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties—especially the losing party—should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know … whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2)The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. …
(3)The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. … But where the dispute involves something in a nature of an intellectual exchange, with reasons and analysis advanced on either side, the Judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases. …
(4)This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. …
[54]The need to give reasons was endorsed by the New Zealand High Court in
Maungaharuru-Tangitu Trust v Hastings District Council.18 There it was said:
[21] The standard for the duty to give reasons depends on the particular circumstances and the statutory context. Where there is a straightforward factual dispute, no more may be required than simply stating whether the Judge believes one witness over another. Where the dispute is more complex with reasons and analysis on either side, the Judge must engage with the issues, analyse the evidence and make reasoned findings.
17 Flannery v Halifax Estate Agencies Ltd, above n 15 at 377–378.
18 Maungaharuru-Tangitu Trust v Hastings District Council [2019] NZHC 2576.
[55] Here, it is plainly arguable that that the Judge did not engage with the expert evidence nor explain why he rejected AGL’s expert’s evidence, or even why he reached the outcome he did in reliance on the appellant’s evidence which did not rely on the December injury either but, rather, on the repetitive nature of the work tasks.
Failing to provide adequate reasons as to how a gradual process injury arises
[56] The second ground on which leave to appeal is sought is inextricably linked with the first ground of appeal but focuses on the requirements of s 30(2) of the Act which sets out what is required to establish a gradual process injury claim.
Appellant’s submissions
[57] Mr Evans submits that the December 2013 injury decision by AGL had never been challenged. It was an injury arising out of a specific event and ongoing cover for that injury was declined. It is unclear, therefore, how it came to be relied on by the Judge for the purposes of establishing a claim under s 30 of the Act. While the Judge covered a large amount of factual narrative, he simply did not analyse why Ms Feaver’s bursitis was a work-related gradual process injury. The fact that all the medical evidence was that the bursitis was pre-existing, meant it cannot have been caused by the accident that caused the December 2013 injury and there was simply no analysis of what the gradual process claim was and how it fitted within s 30 of the Accident Compensation Act.
[58] Furthermore, there was no reference back to the decision under appeal, namely AGL’s letter of 15 October 2015 which declined Ms Feaver’s gradual process claim. That letter stated:
The report from Fit for Work has not been able to identify any employment tasks that have caused or contributed to the cause of your personal injury, and accordingly we must advise that your claim has been declined.
[59] Ironically, the District Court Judge accepted Dr Nicholson’s evidence that Ms Feaver’s pain and dysfunction was not due to an acute injury which is “the reason why the Act provides for work-related gradual process injuries.” But then the Judge specifically relied on the acute injury suffered on December 2013 to support a gradual process injury finding. The Judge failed to analyse the claim in light of s 30 of the Act
which provides the framework for a gradual process injury and this was an error of law.
Respondent’s submissions
[60] Mr Sara, however, submitted that the Judge identified a particular work task which caused or contributed to the claimant’s bursitis, being the picking up and carrying heavy cartons of meat.
[61] The Judge was entitled to make this finding, although Mr Sara accepts that the Judge might not have expressed himself in terms which conform to the language of s 30. He then says that the Judge found “in substance” that the repetitive work Ms Feaver was required to do was not just potentially injurious, it was injurious. He then said the Judge’s reliance on the “injury” suffered on 12 December 2013 was relevant to support a gradual process finding because it amounted to clear evidence of the injurious nature of the task.
[62] In any event, Mr Sara says even if the Judge failed to articulate his reasons in the way contended by the applicant, the real question is whether the applicant’s argument has sufficient merit to warrant another appeal. In that regard, he says the Judge was entitled to adopt a “common-sense” approach in order to find that the required risk criterion had been satisfied under s 30(2)(c) of the Act. He said the same approach was taken by the Court in Molloy v Accident Compensation Corporation, where the Judge held:19
With regard to question 3 “is the risk of injury significantly greater for persons performing that task in that environment”, I accept that what is required to be looked at in this context, is not Ms Molloy’s specific employment as a nursery plant worker but to look more specifically at the work she undertook in that capacity.
[2003] It is accepted that the task of bagging the plants and weeding occupied the majority of her time. She developed CTS in both hands and it is an indicator that these predominant tasks used both her hands. I find this therefore indicates she was at a significant greater risk of injury by performing work tasks in this environment.
19 Molloy v Accident Compensation Corporation [2019] NZACC 137.
[63] Similarly, in Adams v Accident Compensation Corporation, Judge Beattie accepted the specialist evidence that:20
Whilst there is little epidemiological evidence to refer to in assessing risk, it is common sense that if a person has to work eight to ten hours a day with lumbar spine flexed at 15 degrees and rotating one way, as well as having to carry boxes, for what was an accumulative distance per day, this causes greater stress on the lumbar spine than for a person who is not performing this particular job.
[64] Mr Sara says that the Judge was entitled, as a matter of common sense, to find that Ms Feaver’s experience of sharp sudden pain while performing her employment task on December 2013 was proof both of the injurious nature of her tasks as well as of the increased risk that she faced during that work than for people who do not do those tasks. In the circumstances, he says, this is not the kind of case which requires the intervention of the High Court in order to determine some matter of principle.
Discussion
[65] When reading the judgment, it is striking that the requirements of s 30 are not discussed in any detail whatsoever. The Judge appears to rely instead on the December 2013 injury to establish a work-related gradual process injury. The nearest the Judge comes to considering s 30 is in [106] of the judgment but it focuses on the December 2013 injury alone to meet the threshold for Ms Feaver’s bursitis being assessed as a work-related gradual process injury.
[66] AGL was entitled to know why this one-off event was considered sufficient to prove that her work caused or at least contributed to her bursitis, in the face of evidence from AGL that there was nothing in her work task which put her at greater risk of bursitis than the general population who did not undertake such tasks. It should not have to infer what reasoning process the Judge went through to say Ms Feaver’s work tasks at least contributed to her injury.
[67] In summary, both grounds of appeal raised by AGL are clearly arguable, and I now turn to whether leave to appeal should be granted.
20 Adams v Accident Compensation Corporation [2023] NZACC 13.
Result
[68] I acknowledge that if leave to appeal is granted this will cause further delay in deciding a claim under the Act which has already experienced significant delay. In that regard, I note in particular the long delay between the review decision which issued in 2018 and the District Court decision which issued on December 2023, while further evidence and reports were obtained. By the time an appeal is heard in this Court, 10 years will likely have elapsed since AGL declined cover for Ms Feaver’s claim for a work-related gradual process personal injury. However, delay is only one consideration and the delay to date was occasioned by both parties seeking further reports and further clarification on exactly what Ms Feaver’s work tasks involved while she worked for AGL. While further delay points against leave being granted, it is not, in my view, determinative.
[69] I do, however, consider that it is in the interests of justice, that AGL have a decision which clearly articulates why the evidence points to this being a work-related gradual process injury as opposed to a pre-existing condition or a degenerative condition. Having a fully reasoned decision may serve as a useful precedent in respect of future claims and give guidance to AGL. However, it can only do so if the decision clearly identifies how the evidence meets the statutory test under s 30. Thus, while a full appeal will cause further delay, I am satisfied it is in the interests of justice that AGL receives a decision that expressly, and transparently, addresses the statutory test, and the evidence to support it, whether that is to uphold Ms Feaver’s claim, or to decline it.
[70] For these reasons, I am satisfied that there are arguable questions of law, which are of sufficient importance to outweigh the cost and delay of a further appeal. Leave to appeal is, accordingly, granted.
Costs
[71] I was not addressed on costs. Costs would normally follow the event. If costs cannot be agreed any application for costs is to be filed within 20 working days, with any memorandum in response filed within a further 10 working days.
[72]Costs will be determined on the papers unless I need to hear from the parties.
Solicitors:
Young Hunter, Christchurch
Copy to:
H A Evans, Barrister, Christchurch P J Sara, Barrister, Dunedin
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