Chalmers v Accident Compensation Corporation - [2023] NZHC 925

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1535

[2023] NZHC 925

UNDER the Accident Compensation Act 2001

IN THE MATTER

of a special leave application pursuant to s 162 of the Act

BETWEEN

DALE CHALMERS

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 22 February 2023

Appearances:

B Hinchcliff for the Applicant F Becroft for the Respondent

Judgment:

26 April 2023

JUDGMENT OF HARVEY J

This judgment was delivered by me on 26 April 2023 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Solicitors:
ACC and Employment Law, Auckland Medico Law Limited, Auckland

CHALMERS v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 925 [26 April 2023]

Introduction

[1] In 2000, Dale Chalmers (then aged 38) was diagnosed with multiple sclerosis (MS). As her condition advanced and her health deteriorated, Ms Chalmers’ medical team including her orthopaedic specialist, Edward Yee, confirmed that she needed surgery. Otherwise, a spinal condition that had developed could deteriorate and lead to her becoming a paraplegic. Ms Chalmers underwent spinal surgery on 7 February 2018. Soon after she suffered a T6 paraplegia injury. On 12 February, Mr Yee filed an ACC claim for a treatment injury as the outcome was “unexpected and devastating”.

[2] On 2 May 2018, the Accident Compensation Corporation declined cover. The present proceedings stem from that and subsequent related decisions. An appeal to the District Court was filed on 6 January 2021. Judge D L Henare dismissed Ms Chalmers’ appeal on 5 May 2022.1 She subsequently sought leave to appeal to this Court. That application was also dismissed by Judge P R Spiller on 16 August 2022.2 Ms Chalmers now applies for special leave to this Court.

[3]The issue for determination is whether leave should be granted.

Background

[4] It is accepted that Ms Chalmers has pre-existing multiple sclerosis. She took an MRI scan on 16 November 2017 which revealed a large thoracic disc protrusion at T6/73 and severe spinal canal narrowing in the same area.4 Dr Pereira, a neurologist, recorded in a referral letter the next day, in part, that Ms Chalmers should proceed with surgery because she “believe[d] it is contributing to [Ms Chalmers’] immobility”. She referred Ms Chalmers for a surgical opinion.

[5] Then on 17 December 2017, Dr Yee, an orthopaedic surgeon, recorded in his correspondence with Dr Pereira that Ms Chalmers wanted to proceed with surgery. He noted that he had informed Ms Chalmers that it was not possible to determine whether her spine injury as described above or her pre-existing MS were causing her

1      Chalmers v Accident Compensation Corporation [2022] NZACC 79.
2      Chalmers v Accident Compensation Corporation [2022] NZACC 156.
3      Between the sixth and seventh thoracic vertebrae.
4      Spinal canal narrowing can cause compression on the spinal cord.

symptoms, including “extreme difficulty walking”. He also informed Ms Chalmers of the potential risks and side effects of the surgery including that “thoracic disc removals are associated with a…

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: [2023] NZHC 925
Decision Date: 26 April 2023

CaseChat Overview and Summary

In this case, Dale Chalmers, who has multiple sclerosis, underwent spinal surgery that resulted in paraplegia. Chalmers applied for compensation under the Accident Compensation Act 2001, which was declined by the Accident Compensation Corporation (ACC). Chalmers appealed this decision to the District Court, which was dismissed, and subsequently sought leave to appeal to the High Court. The legal issues in this case revolve around the interpretation and application of section 32(1)(c) of the Act, which defines a "treatment injury" as an injury that is not an ordinary consequence of the treatment. The court had to determine whether the District Court correctly interpreted and applied this provision and if there were any errors of law or fact.

The High Court found that there was a bona fide and serious argument that the District Court may have erred in its interpretation and application of the statutory provision. The court considered that the District Court's conclusion that the paraplegia was not surprising, and therefore not an ordinary consequence of the treatment, may have been overly broad. The court also considered that the District Court may have erred by taking into account the fact that Chalmers had an underlying condition that would have led to paraplegia if untreated. The court emphasised that the focus should be on whether the outcome that occurred is within the range of ordinary consequences rather than whether the risk of the outcome was predicted in advance of treatment. The court found that the proposed appeal had an issue of principle at stake and would provide precedent value, warranting the grant of leave to appeal.

The final orders of the court were to grant leave to appeal on the approved question: Did the District Court fail to correctly apply s 32(1)(c) of the Accident Compensation Act 2001?

Orders