Davidoff v Accident Compensation Corporation
[2019] NZHC 605
•27 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-3067
[2019] NZHC 605
UNDER The Accident Compensation Act IN THE MATTER
of an application for special leave to appeal to the High Court pursuant to s 162 of the Act
BETWEEN
JOHN DAVIDOFF
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 21 March 2019 Appearances:
Applicant in person
D Tuiqereqere for the Respondent
Judgment:
27 March 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 27 March 2019 at 4.00 pm Pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Counsel/Solicitors:
D Tuiqereqere, Medico Law Limited, Grey Lynn Copy to Applicant
DAVIDOFF v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 605 [27 March 2019]
Introduction
[1] The applicant Mr Davidoff seeks special leave, pursuant to s 162(3) of the Accident Compensation Act 2001 (the Act), to appeal a decision of Judge Denese Henare dated 31 March 2016. That decision dismissed three appeals from determinations of the Accident Compensation Corporation (the Corporation).1
[2] In a subsequent judgment Judge G M Harrison declined to grant leave to appeal from the decision, on the grounds that the proposed appeals were either not based on an error of law or, alternatively, had no reasonable prospect of success.2
[3] The applicant now applies for the special leave of this Court to bring such appeals.
[4] In that respect he did not file a synopsis of written submissions. He relies instead on his Notice of Appeal and a bundle of documents (comprising approximately 300 pages, plus additional materials handed up during the hearing), many of which have been liberally annotated by him. He also made extensive oral submissions. Although the matter (and a related appeal) had only been set down for half a day I heard from him until after the luncheon adjournment.
Background
[5]The three appeals heard by Judge Henare were:
(a)355/13 concerning the Corporation’s decision of 17 October 2012 declining cover for a condition described by Mr Davidoff as a “scabies infection”.
(b)456/13 concerning the Corporation’s decision of 14 January 2013 declining cover for “contusions of face, scalp, neck and nose”.3
1 Davidoff v ACC [2016] NZACC 79.
2 Davidoff v ACC [2016] NZACC 296.
3 This was the expression used by Mr Davidoff’s general practitioner Dr Marriott in the inquiry claim form. Mr Davidoff takes significant exception. He says these words were never used and that he complained of “cranial contusion or fracture”. That is the basis on which Judge Henare approaches the appeal.
(c)572/13 concerning the Corporation’s decisions of:
(i)20 March 2008 declining a claim for weekly compensation; and
(ii)18 March 2003 determining the whole of person impairment rating (WPI) to be 10 per cent.
I will deal with each of these in turn.
AC 355/13 – cover for scabies infection
[6] Before Judge Henare Mr Davidoff argued that he had suffered a scabies infection arising from exposure to the public in his former work place (a pizza parlour). He said that this dated from 1994/95 and had been diagnosed by his then general practitioner (Dr Louise Aldridge). He said that he had since suffered recurrences of the condition between 2004 and 2008 and again in 2011. In September 2012 he sought cover for this alleged infestation.
[7] The District Court set out the relevant history and medical evidence in some detail, noting that no contemporaneous medical reports had been produced to support the stated earlier diagnosis and treatment for scabies infection.
[8] In relation to medical reports received subsequent to the claim, the Court noted that:
(a)Mr Davidoff’s current general practitioner, Dr Marriott, had, despite previous attempted treatment for scabies, concluded that there was “really nothing I can see about the various lesions that indicate scabies”.
(b)Dr Marriott referred Mr Davidoff to Dr Lamb, a dermatologist at Auckland Hospital who concluded that:
Although you may have been treated for scabies in the past there are no features at present to suggest that you now have an active scabies infestation. You therefore do not require treatment for this.
(c)As a consequence of a complaint about Dr Lamb’s conclusions, Mr Davidoff was further reviewed by Dr Patel who confirmed Dr Lamb’s diagnosis.
[9] The Judge recognised that Mr Davidoff had a genuine belief that he had contracted scabies at work, but noted that the Court had to consider all the evidence and that his assessment was not supported by the medical reports available. Adopting the words of the Corporation’s reviewer, she held that Mr Davidoff’s own diagnosis:
Is not sufficient for the purposes of the legislation. It must be confirmed by a Doctor.
[10] Additionally, the Court held that there was no sufficient evidence that the alleged condition was caused by a work related gradual process, disease or infection. It noted Mr Davidoff’s belief that the alleged infestation had been caused through “contact with customers” but said there was inadequate evidence to establish a causal connection between the tasks undertaken or the environment in which they occurred and the alleged condition.
[11]In the result, the appeal was dismissed.
AC 456/13 – cover for contusions of face, scalp, neck and nose
[12] Mr Davidoff’s appeal was against the Corporation’s decision declining claim for injuries allegedly sustained in a 1995 assault. His claim was lodged in September 2012. He stated that he had not received treatment at the time of the assault and was therefore unable to produce any contemporaneous medical evidence.
[13] The Court set out the relevant background, including these assertions, and referenced a witness statement from a Ms Robin Booth, dated 6 December 2014. It noted that the Corporation did not dispute that an assault had taken place. Rather its position was that there was no evidence as to what, if any, injuries had been suffered.
[14]In that respect the Court held that:
(a)Ms Booth had not been a witness to the incident and, although stating that she had observed Mr Davidoff’s “injuries” two weeks after the event, did not say what the nature of these injuries was.
(b)Reference in an undated report by optometrist Mr McLennan to a requirement for nose pads to compensate for a broken nose did not assist, given that the optometrist was not qualified to diagnose cranial injury or contusion injury and did not in fact do so.
(c)A medical certificate from Dr Marriott, dated 17 September 2002, referring to head contusion (recurring headaches) did not assist. In the absence of contemporaneous medical evidence, it was equally plausible that the headaches had their origin in some other cause or even accident (and if the latter, one for which Mr Davidoff may not have had cover, given he had lived out of New Zealand for much of his life).
(d)Given that Mr Davidoff had not sought treatment for his alleged injuries at the time of the incident and that there was no contemporaneous medical evidence, the Corporation was prejudiced in the context of a claim which was not brought until almost 20 years later.4
AC 572/13 – entitlement to weekly compensation
[15] Mr Davidoff sustained a back injury on 25 or 26 February 2008. He applied, inter alia, for weekly compensation from the date he was certified as unfit for work (10 March 2008). In a decision dated 20 March 2008, the respondent declined such compensation on the basis that the information available to it did not support the fact that he was, immediately before his certification, an earner in receipt of earnings.
[16] Mr Davidoff sought a review of that decision, which was unsuccessful, and then appealed to the District Court. In a decision dated 14 April 2009, Judge
4 The actual period was 18 years. Section 53(1) and (3)(a) of the Act required a claim for cover to be brought within 12 months of injury. However, s 53(2) provides that the Corporation must not decline a claim brought out of time unless the lateness prejudices the Corporation in its ability to make decisions. In declining the claim, the Corporation relied, inter alia, on prejudice under the section.
Cadenhead held that the evidence did not support Mr Davidoff having been in employment immediately before his incapacity commenced on 10 March 2008 and that previous employment with Orangewood Ltd (which had terminated on 20 February 2008) did not qualify within the extended definition in cl 43 Schedule 1 of the Injury Prevention Rehabilitation and Compensation Act 2001.5 An application for leave to appeal that decision to the High Court was dismissed on 14 August 2009.6
[17] In late 2009 and again in April 2013 the applicant lodged further applications for review seeking to contest the respondent’s decision of 20 March 2008. Both were declined. The latter was then appealed to the District Court.
[18] Judge Henare concluded that the doctrine of res judicata precluded the further claim. She referred to the celebrated dictum in Henderson v Henderson7 requiring the parties to bring their whole case before the Court so that all aspects of it may be finally decided and to the fact that, in the absence of special circumstances, the parties cannot return to the Court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise.
AC 572/13 – whole person impairment
[19] The relevant issue here was Mr Davidoff’s entitlement to lump sum compensation in relation to his back injury sustained in February 2008. The quantum of such compensation was contingent, inter alia, on a claimant’s medically assessed whole person impairment (WPI) for their covered personal injury.
[20] For the Corporation Dr Thakurdas assessed the applicant as having a 10 per cent WPI. This was confirmed on peer review by Dr Gordon Hancock. On that basis the Corporation assessed that Mr Davidoff was entitled to a lump sum payment of
$3,266.56.
5 Davidoff v Accident Compensation Corporation DC Wellington, 54/2009, 14 April 2009.
6 Davidoff v Accident Compensation Corporation [2009] NZACC 140 at [11].
7 Henderson v Henderson [1843] 3 HALE 100.
[21] Judge Henare described the relevant facts noting that the applicant had endeavoured to have other conditions assessed but was not entitled to do so beyond the injury for which he had received cover. She noted that:
The case law is well settled that in order to succeed in an appeal of this type it is for the claimant to establish on the balance of probabilities that the assessment [of his whole person impairment] was in some way flawed or incorrect. This requires credible expert evidence directed at the specific aspects of the assessment which are said to be incorrect and does not require a full alternative assessment.
[22] She noted that Mr Davidoff had not produced any medical evidence to show that Dr Thakurdas’ assessment was flawed and concluded:
I can only overturn the assessment if I am satisfied that it is in some way materially flawed or incorrect. I have considered Dr Thakurdas’ assessment carefully as well as the other reports on file before me. Like the reviewer I am unable to identify any flaw or error on the face of the assessment. In particular there is nothing inconsistent between Dr Thakurdas’ assessment and any of the other documents. In any event a direct comparison of reports is not helpful because the assessment requires Mr Davidoff’s impairment to be assessed in terms of the AMI guides and the ACC user handbook which is a prescriptive and technical exercise.
[23] This aspect of the application for leave was not pursued by Mr Davidoff at the hearing because he said his whole of person impairment rating had subsequently been reassessed at 24 per cent. Although he suggests this is still too low, his remedies, if any, lie in relation to that reassessment.
Application for leave to appeal
[24] Mr Davidoff sought leave to appeal Judge Henare’s decision to this Court. In that respect Judge Harrison held:
(a)In relation to appeals 355/13 and 456/13, the District Court’s conclusions were conclusions of fact, arrived at by the Judge on the material before her and in respect of which no question of law arose.
(b)In relation to the first issue raised by appeal 572/13, Judge Henare was clearly correct in holding that the claim was precluded by the doctrine of res judicata. Judge Harrison regarded the further applications for
review as “an abuse of the process of the Court in attempting to relitigate matters already determined by a Court of competent jurisdiction”.8
Approach on application for special leave
[25] The principles applicable to such application are uncontentious. They were summarised by Fisher J in Kenyon v ACC as follows:9
(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;10
(b)although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an error of principle at stake or a considerable amount hinges on the decision and that there is a reasonable prospect of success;11
(c)the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;12
(d)it is for the applicant to show that leave is required in the interests of justice;13 and
(e)as leave has already been refused by the District Court there will normally have to be some extraordinary factor which has not been properly taken into account.14
[26] In the context of an application for leave under s 162 of the Act, it is an error of law, with the requisite prospects of success, that must be established. In certain circumstances errors of fact can constitute errors of law. To do so, however, they must, in combination and in the context of the whole decision be sufficiently grave that they are properly so described.15 Generally, it will only be in cases where the finding of fact is based on no evidence, or on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence, that the test will be satisfied. Other recognised
8 Davidoff v ACC [2016] NZACC 296 at [10].
9 Kenyon v ACC [2001] NZHC 1301
10 Sandle v Stewart [1982] 1 NZLR 708 (CA).
11 Sandle v Stewart [1982] 1 NZLR 708 (CA); Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509; Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43.
12 O’Loughlin v Healing Industries Limited (1990) PRNZ 464.
13 Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
14 Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43.
15 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at 19.
circumstances may include failure to take into account relevant considerations, a reliance on irrelevant considerations, application of incorrect onus and failure to draw proper inferences.16
Discussion
AC 355/13
[27] Her Honour’s decision in this respect clearly turned on an analysis of the facts and evidence. Her conclusion that such evidence did not support Mr Davidoff’s contention that he was suffering from scabies was one clearly available to her based on the various reports she summarised.
[28] In that context I cannot accept Mr Davidoff’s submission that her conclusions were the result of a “guessing practice” such as could potentially elevate her factual findings to errors of law. She was not obliged to discount Dr Marriott’s conclusion that he could “really see nothing … that indicates scabies” just because he had previously treated various lesions as such. The doctor was permitted to change his mind based on further and better assessment and I have no doubt his earlier treatment for scabies was significantly influenced by Mr Davidoff’s insistence that he was suffering from a new outbreak of earlier diagnosed17 scabies or that (as asserted to me) he had been re-exposed to it as a result of work on the Ruapehu skifields. In addition, Judge Henare had clear statements from Dr Lamb and Dr Patel that there was no “active scabies infestation” at the time of their review.
[29] As to whether the alleged condition was caused by an accident or that it was work related, the Judge correctly identified the leading authority as Accident Compensation Corporation Ltd v Ambros which, in its terms, stipulates for an approach which admits “robust references” consistent with a “generous and unnigardly approach” to compensation.18 Nevertheless, there was no evidence before the Court linking the alleged scabies infection to any relevant part of Mr Davidoff’s
16 See generally Fisiipeau v Minister of Immigration HC Wellington CIV-2010-485-179, 14 May 2010 at [33] per R Ivory J; Koroua v Chief Executive of Ministry of Social Development [2013] NZHC 3418 at [10] per Kos J.
17 As indicated, there was no proof of earlier diagnosis before the District Court.
18 Accident Compensation Corporation Ltd v Ambros [2008] 1 NZLR 340.
work history or satisfactorily discounting other sources. Her Honour’s conclusion was not only available, but in my view inevitable. Mr Davidoff had simply not discharged the onus of proof in respect of his application.
[30] In my view, therefore, no realistically arguable issue of law arises in relation to the first appeal.
AC 456/13
[31] I reach a similar conclusion in relation to this appeal. Again, there is no basis to suggest that the Court’s assessment of the facts so far departed from what was required as to constitute an error of law. Indeed, I would go further and confirm the appropriateness of the conclusion which her Honour reached. There was simply no significant evidence, establishing on the balance of probabilities, either a cranial injury or linkage to the stated symptoms of memory loss or headaches. Certainly, Mr McLennan’s reference to a “broken nose” was properly considered by her Honour as inadequate.19
[32] Mr Davidoff is critical that the Corporation had not directed an MRI scan but when Dr Marriott referred him to Auckland Hospital for neurological review (despite his inability to find anything abnormal on examination) Dr Hutchison concluded by a “comfortable margin” that neither a clinic appointment nor MRI could have been justified. Moreover, the Corporation did confirm that it would pay for an x-ray if a referral was made. No such referral occurred, presumably for the reason expressed to me by Mr Davidoff that he regards them as unsafe. Presumably a healed cranial fracture would have been discernible on x-ray. However, the complaints are in any event irrelevant to the issues raised on this application.
[33] Judge Henare’s alternative finding, that the Corporation was justified in declining the claim on account of prejudice, is in my view similarly one not open to reasonable challenge. This was a finding of fact demonstrably justified by the very
19 Mr Davidoff referred me to a further unnamed optometrist’s report which contains reference to “cracked skull” but this phrase appears in inverted commas and is clearly a reference to what Mr Davidoff told the optometrist. Moreover, Judge Henare was clearly correct in saying that an optometrist’s report was inadequate proof of cranial injury.
extended period (18 years plus) between incident and claim, the absence of any contemporaneous medical reports and the almost self-evident difficulties faced by the Corporation in rebutting any claimed link between injury (if proven) and event after such an extended period.
AC 572/16 – entitlement to weekly compensation
[34] In my view, Judge Henare was correct in her conclusion that such claim was precluded by the doctrine of res judicata. I agree also with Judge Harrison that there is no realistic argument to the contrary. A review of the record indicates that Judge Cadenhead adopted a benevolent attitude to the applicant’s appeal, allowing him further time after the hearing on 19 November 2008 to collate relevant materials. Nevertheless, he was unable to establish to the Judge’s satisfaction that he was an earner immediately before the date of his certification as being unfit for work.
[35] On the basis of the well-recognised principles in Henderson v Henderson, Mr Davidoff was obliged to advance all arguments and claims available to him 20. The reasons for that rule are obvious, given the public policy imperatives around finality in litigation. Nevertheless, Judge Henare indulged the defendant further by receiving what Mr Davidoff described as “evidence extra and new”. Most of this, she concluded, had already been before Judge Cadenhead and, to the extent it had not, was irrelevant.
[36] In my view, her conclusion that the Court was precluded from entertaining an appeal from the Corporation’s rejection of the April 2013 application for review was clearly correct in law.
[37] Mr Davidoff’s remedy was to seek the leave of the District Court to appeal Judge Cadenhead’s decision. He did so and leave was declined. He then had the option of prosecuting an application for special leave in this Court. He did not do so.21
20 Henderson v Henderson [1843] 3 HALE 100.
21 He says he forwarded such an application to the High Court but there is no record of receipt. Nor did he seek to further litigate that issue at the time. Because of the s 162(4) 21-day time limit on application for special leave, he is now significantly out of time.
[38] At this point, therefore, his only remedy is pursuant to s 65 of the Act involving an application to the Corporation to revise its decision on the basis that it was “in error”, having regard to the evidence which he now says establishes his employment status at the relevant time.22
[39] I record that Mr Davidoff’s oral submissions justifying a seriously arguable error of law in respect of this aspect of Judge Henare’s decision did not engage with the res judicata doctrine. His position was that:
(a)his “spinal injury is consistent and was consistent at the time of the decisions of Judge Cadenhead and Judge Henare”.
(b)“the regulations of the Statutory Acts of New Zealand for compensation, prevention and rehabilitation regulates (sic) weekly payments for people with injuries related to work”.
(c)he was as a fact “in full employment” at the time of his injury as indicated by an IRD receipt included in his bundle of documents.23
(d)the “rule of law” required that he receive weekly compensation and that it was a “miscarriage of justice” if he did not.
[40] None of these points derogate from Judge Henare’s conclusion in respect of the Corporation’s res judicata argument and I am not therefore required to consider them further.
Result
[41]I dismiss the application for special leave to appeal.
22 Mr Tuiqereqere acknowledged in argument that the Corporation’s decision on such application is one which is itself open to review/appeal. I do not express my views on the merits of such application.
23 Whether this was before Judge Cadenhead is not apparent from the materials provided to me.
[42] The Corporation’s submissions do not address costs. In the unlikely event they are sought, memoranda may be filed on the following timetable (maximum five pages):
(a)The Corporation’s submissions to be filed and served by 15 April 2019.
(b)The applicant’s submissions to be filed and served by 29 April 2019.
(c)(Any) submissions in reply to be filed and served by 6 May 2019.
Muir J
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