Davidoff v Accident Compensation Corporation
[2019] NZHC 604
•27 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2657
[2019] NZHC 604
UNDER The Accident Compensation Act 2001 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, Auckland.
Copy to:
The Applicant
DAVIDOFF v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 604 [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 J H Walker. That decision dismissed an appeal from a determination of the Accident Compensation Corporation (the Corporation) which declined cover for an alleged knee injury.1
[2] In a subsequent judgment, the District Court declined to grant leave to appeal from that decision on the grounds that the proposed appeal was not one based on an error of law.2
[3] The applicant now applies for the special leave of this Court to bring such an appeal.
[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, 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] In 2008 the applicant obtained cover from the Corporation in respect of a lumbar strain suffered earlier that year.
[6] In September 2012 he complained of knee pain which he attributed to the fact that his gait had been affected by the former lumbar strain. He filed a further injury claim on the basis that he was suffering from “a consequential injury”. Such a claim is potentially available under s 20(2)(g) of the Act which provides cover for:
personal injury caused by a gradual process, disease or infection consequential on personal injury suffered by the person for which the person has cover.
1 Davidoff v Accident Compensation Corporation [2016] NZACC 213.
2 Davidoff v Accident Compensation Corporation [2016] NZACC 278.
[7] That claim was the subject of an investigation (including a MRI scan) and report. The case was then reviewed by Branch Medical Officer (BMO), Dr Odedra, who, in a report dated 6 May 2014, concluded that there was no relevant knee injury and that generally the back injury would need to be of “such severity and be long term or permanent to cause a significant posture/abnormal lower back loading to lead to bilateral knee condition/injury”.
[8] On 12 June 2014 the Corporation accordingly declined cover for the alleged knee injury.
[9] The applicant applied for a review of that decision, following which the Corporation referred the matter to its Complex Claims Panel, which in turn sought advice from orthopaedic surgeon and BMO Mr W Taine. He concluded that there was no injury which could be considered causative of the anterior knee pain complained of and that there was no causal connection between these symptoms and the applicant’s lower back condition. He stated that there was nothing in any of the relevant literature to support a causal link between knee pain and abnormal gait as a result of a spinal condition, other than the very specific condition secondary to fusion at the lumbosacral junction (a “flat back syndrome”).
[10]The Complex Claims Panel therefore confirmed the declinature of cover.
Appeal to the District Court
[11] In her detailed decision dated 11 August 2016, Judge J H Walker summarised all the various reports and test results obtained by the Corporation. She correctly identified that the applicant was entitled to be covered if he had either sustained a discrete personal injury by accident or, pursuant to s 20(2)(g), a consequential injury. She correctly identified the Court of Appeal’s decision in Accident Compensation Corporation v Ambros3 as the leading authority in respect of causation and the fact that it stipulated for an approach which admitted “robust inferences” consistent with a “generous and unniggardly approach” to compensation.4
3 Accident Compensation Corporation v Ambros [2008] 1 NZLR 340.
4 As advocated in Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] (CA), per Elias CJ, at [39] per Keith J, and at [130] per McGrath J.
[12] In respect of whether there was an injury, she noted that none of the medical practitioners had identified any structural cause for the applicant’s symptoms. She adopted the submission of counsel for the Corporation in terms that an injury is distinct from symptoms and that an injury must have some distinct identifiable structural pathology.
[13] She further held that there was no evidence of the consequential link which the applicant had asserted respecting his 2008 injury.
[14] In summary, she saw the medical evidence as providing an “overwhelming consensus in support of the decision made by the corporation”.5 She concluded:6
I do not find that Mr Davidoff has discharged the onus to establish, on the balance of probabilities, that his back injury of 2008 is the cause of his knee pain.
Application for leave to appeal
[15] The applicant sought leave to appeal her Honour’s decision. In a reserved judgment dated 4 October 2016, Judge A N MacLean declined the application for leave.
[16] He concluded that he was unable to identify a relevant question of law. He acknowledged that in certain limited circumstances errors of fact could sometimes be elevated to errors of law, but said that the applicant had failed to bring the case within this limited jurisdiction. He concluded:
… her Honour’s decision was one very much determined on the facts as disclosed in evidence. There is no substantive material, legal issue or issue of law arising.
[17]Accordingly, he dismissed the application.
5 At [71].
6 At [74]. I note that the ultimate issue is not whether it had caused knee pain but whether it had resulted in a consequential injury. But her Honour had of course already found that there was no such injury.
Approach on application for special leave
[18] The principles applicable to such application are uncontentious. They were summarised by Fisher J in Kenyon v ACC as follows:7
(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;8
(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;9
(c)the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;10
(d)it is for the applicant to show that leave is required in the interests of justice;11 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.12
[19] In the context of an application for leave under s 162 of the Act, it is an error of law, with the requisite reasonable prospects of success that must be established. As his Honour Judge MacLean recognised, however, errors of fact can constitute errors of law. To do so, such errors must in combination (and in the context of the whole decision) be sufficiently grave that they are properly so described.13 Generally, it will only be in cases where the finding of fact is based on no evidence, or based 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 circumstances may include failure to take into account relevant considerations, a reliance on irrelevant considerations, application of
7 Kenyon v ACC [2001] NZHC 1301
8 Sandle v Stewart [1982] 1 NZLR 708 (CA).
9 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.
10 O’Loughlin v Healing Industries Limited (1990) PRNZ 464.
11 Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
12 Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43.
13 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at 19.
incorrect onus and failure to draw proper inferences.14 Judge MacLean correctly identified these principles in his decision.
Discussion
[20] In my view the District Court was correct to decline leave to appeal, as the applicant has no reasonable prospect of success in establishing there was an error of law in Judge Walker’s decision.
[21] In respect of her finding that Mr Davidoff’s symptoms were unrelated to an “injury”, there was an ample evidential basis including that provided by the MRI. Although this confirmed posterior meniscus ligament damage (tears) to both knees, the symptoms of anterior pain identified by Mr Davidoff were not consistent with such damage. As Mr Danesh-Clough, orthopaedic surgeon, reported in relation to the MRI:
I have discussed these findings today with John. His symptoms are very much more towards the anterior half of the knee. He has no symptoms more posteromedially. Clinical assessment is not consistent with his changes in the meniscus being symptomatic.
[22] In that context the observed tears were irrelevant to the claim. Mr Davidoff’s submission to me that Dr Danesh-Clough was not in that respect “telling the truth” is not one which he can expect to find favour with this Court.
[23]To similar effect:
(a)Mr Davidoff’s general practitioner Dr G Marriott could not diagnose “an injury as such”.
(b)Dr Odedra concluded that “he does not have any other knee injuries but has a back injury accepted for an accident in 2008”.
(c)Mr Taine concluded:
14 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.
Although in this case there is a symptom of pain arising from the extensor mechanism, there is no structural cause identified. In essence there is no injury apparent.
[24] The evidence therefore supported the judge’s finding of an “overwhelming consensus” about the absence of a relevant injury. Mr Davidoff’s submission that there was material “uncertainty” about their position is simply wrong. In any event the onus was on him to establish the injury.
[25] Such finding was sufficient to dispose of the appeal, but I accept that there was also a demonstrably adequate factual foundation for her alternative finding that Mr Davidoff’s symptoms were not causally related to his spinal injury. Indeed, that was Mr Taine’s actual conclusion viz “A causal link between his symptoms of anterior knee pain and back pain is not apparent”. And he further identified that there are “many indirect causes of such symptoms ranging from osteoarthritis to developmental causes or tendinopathies. In many cases no particular cause may be able to be identified”. And although Mr Danesh-Clough identified the likely source of pain as “patellofemoral discomfort” as a result of back pain induced abnormality to Mr Davidoff’s gait, such conclusion was not one linked to identification of any injury.
[26] Accordingly, there is no basis to suggest that Judge Walker’s factual findings in this respect were in error, let alone to the extent necessary to constitute an error of law.
[27] Nor is there any suggestion that she applied an incorrect legal test in relation to causation. Even with the facility to draw “robust” inferences it was, in my view, well open to her to conclude that no sufficient causal link had been established.
Result
[28]I dismiss the application.
[29] 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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