Austin v Accident Compensation Corporation - [2024] NZHC 1985

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2918

[2024] NZHC 1985

UNDER the Accident Compensation Act 2001

IN THE MATTER OF

an application under Section 162

BETWEEN

LESLIE NORMAN AUSTIN

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 4 July 2024

Appearances:

G J Thwaite for Applicant

L M Hansen for Respondent

Judgment:

18 July 2024

JUDGMENT OF O’GORMAN J

[Application for special leave to appeal]

This judgment was delivered by me on 18 July 2024 at 3.30 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:
G J Thwaite, Auckland L M Hansen, Wellington

AUSTIN v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 1985 [18 July 2024]

[1] This is an application for special leave to appeal the judgment of Judge P R Spiller in Austin v Accident Compensation Corporation,1 which dismissed an appeal from the decision of a Reviewer of the Independent Complaint and Review Authority dated 22 December 2021.2 Leave to appeal from Judge Spiller’s decision was declined by Judge C J McGuire.3

[2] Starting in his early thirties, Mr Austin was prescribed the pharmaceutical product Roaccutane (isotretinoin) to treat severe acne. Later he developed osteophytes (bone growths) on his spine and elsewhere. By decisions dated 11 December 2015 and 4 April 2016, Mr Austin sought and obtained cover and related entitlements under the Accident Compensation Act 2001 (the Act) for bone growths caused by medical treatment (as a “treatment injury”). In 2016, Mr Austin brought proceedings in the High Court against Roche Products (New Zealand) Ltd (Roche), the New Zealand distributor of Roaccutane, seeking compensatory and punitive (exemplary) damages. Roche argued that the claim for compensatory damages was barred by s 317 of the Act because Mr Austin was entitled to Accident Compensation Corporation (ACC) cover. The Supreme Court ruled that disputes about cover must be determined using the procedures prescribed under pt 5 the Act.4

[3] This application for special leave forms a part of Mr Austin following the pt 5 procedure, seeking to revoke the cover granted to him by ACC in April 2016. If successful, the bar in s 317 of the Act would not preclude Mr Austin from pursuing his common law claim for compensatory damages against Roche.

[4]In his submissions, the applicant also raised an issue of confusion between:

(a)diffuse idiopathic skeletal hyperostosis (DISH), which by definition is idiopathic (i.e. of unknown cause); and

1      Austin v Accident Compensation Corporation [2023] NZACC 59 [District Court decision].
2      Austin v Accident Compensation Corporation, Review Decision dated 22 December 2021, Review Number 7335360, ICRA Ref ICR21-0704362 [Review decision].
3      Austin v Accident Compensation Corporation [2023] NZACC 180 [Leave decision].
4      Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30, [2021] NZSC 30 at [13], [20], [28], [32], and [36]−[37].

(b)retinoid hyperostosis, a DISH-like condition, which in this case was caused by use of Roaccutane (isotretinoin).

[5] Although the symptoms look almost identical, the causes are different.…

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: [2024] NZHC 1985
Decision Date: 18 July 2024

CaseChat Overview and Summary

The case of Austin v Accident Compensation Corporation involves an application for special leave to appeal a decision that dismissed an appeal regarding the grant of cover by the Accident Compensation Corporation (ACC) for bone growths caused by medical treatment. The applicant, Leslie Norman Austin, sought to revoke the cover granted in April 2016 to pursue a common law claim for compensatory damages against Roche Products (New Zealand) Ltd, the distributor of Roaccutane, which he was prescribed for acne. The application for special leave was declined by Judge C J McGuire, who found that none of the grounds raised a seriously arguable error of law.

The legal issues in this case primarily revolved around the interpretation of the Accident Compensation Act 2001, specifically the definition of "treatment injury" and whether Mr Austin's bone growths were an ordinary consequence of his treatment with Roaccutane. The applicant alleged several errors of law, including the burden of proof, the qualification of ACC's experts, and the analysis of medical evidence. The court assessed each of these points against the principles established in previous cases, such as Chalmers v Accident Compensation Corporation and Keyon v Accident Compensation Corporation, which emphasize the need for a bona fide and serious argument capable of clarifying the law.

The court found that the burden of proof did not rest on ACC but rather on Mr Austin to prove that the decision granting cover was wrong. The court also determined that ACC's experts were suitably qualified, and their evidence, though presented in written reports, was admissible under the Act. Furthermore, the court held that the reference to the procedural history of the case was appropriate and did not imply any bias. The applicant's argument that the gradual process of developing bone growths precluded cover was also rejected, as treatment injuries could include injuries caused by gradual processes.

Ultimately, the court concluded that none of the grounds for appeal were capable of bona fide and serious argument and that the proposed appeal did not have a reasonable prospect of success. The application for special leave to appeal was therefore declined. The court's role, as it sees it, is to ensure the correct application of the legislation as interpreted by the principles set out in relevant case law. The financial implications and policy considerations were deemed irrelevant to the court's decision.

Orders