Easthope v Accident Compensation Corporation

[2025] NZHC 398

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-636

[2025] NZHC 398

BETWEEN

TERENCE EASTHOPE

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

26 February 2025

Appearances:

Appellant in person

L D Hawes-Gandar for Respondent

Judgment:

5 March 2025

JUDGMENT OF BOLDT J

[1]    Mr Easthope suffers from a longstanding shoulder injury. He was injured in 1986 and made a successful application for Accident Compensation Corporation (ACC) cover in 1989. He told me he received $4,360 in lump sum compensation the same year.

[2]    Mr Easthope advised that in 1989 he was told he required surgery, but that he did not receive an operation until 2012. He said he suffered extreme pain in the intervening years, and still suffers from ongoing discomfort, in part because his surgery was delayed for so long.

[3]    While Mr Easthope’s injury and the delays in his treatment form the background to this case, the current application concerns a complaint he made about the way the ACC handled his file. It is  common ground that sometime between  1993 and 2005, ACC destroyed Mr Easthope’s file. He learned of this in the

EASTHOPE v ACCIDENT COMPENSATION CORPORATION [2025] NZHC 398 [5 March 2025]

mid-2010s, and wrote to ACC complaining about the  destruction  of  his  file  in July 2022. ACC immediately acknowledged the destruction of the file and apologised. It reiterated its apology in November 2022.

[4]    On 31 August 2023, Mr Easthope complained to ACC that the destruction of his file was a serious service failure which had led to significant consequences throughout his life. He demanded a large sum — $32 million — in compensation. On 14 September 2023 Mr Easthope confirmed he wanted his complaint investigated under  the  Code  of  ACC  Claimants’  Rights  (the  Code).1  In  his  submissions,  Mr Easthope said it was effectively ACC who decided his complaint should be investigated under the Code, and that a Code complaint was not what he had in mind.

[5]    The Code covers claimants’ privacy and guarantees access to their information. It is understandable, even if Mr Easthope’s complaint was not couched in those terms, that ACC framed its investigation with reference to the Code.

[6]    ACC dismissed Mr Easthope’s complaint. It determined there were no breaches of his rights under the Code, as the destruction of his file had occurred in accordance with its document retention policies as they stood at the time. Mr Easthope asked for the outcome of his complaint to be reviewed, and the reviewer reached the same conclusion. The reviewer observed:2

[53]      Mr Easthope has offered no evidence to suggest that ACC did not deal with the physical file in compliance with its obligations under the law, nor pointed to what specifically occurred in the context of the destruction of the file that has inhibited his right to complain or progress claims with ACC in the present day.

[54]      I note Mr Easthope is also seeking a considerable sum in compensation in an amount that is well outside my jurisdiction. I note ACC has considered this separately under the POSSE Scheme and I also note there is no specific provision in the Code for monetary compensation to be awarded.

[7]    The reviewer noted it was unclear what medical information ACC would have held on file in any event, given its role was connected with providing compensation

1      Injury prevention, Rehabilitation, and Compensation (Code of ACC Claimants’ Rights) Notice 2002 (Accident Compensation Corporation, 2002/390).

2      Easthope v Accident Compensation Corporation (ACC) (Independent Complaint & Review Authority, CR24-0111836, 13 March 2024).

and rehabilitation. The reviewer observed that Mr Easthope’s substantive medical records should continue to be held by his medical provider.3

[8]    Mr Easthope was dissatisfied with the reviewer’s decision and sought to appeal to the District Court under s 149 of the Accident Compensation Act 2001 (the Act). Section 149 provides:

149 Who may appeal against review decision

(1)A claimant may appeal to the District Court against—

(a)a review decision; or

(b)a decision as to an award of costs and expenses under section 148.

(2)The Corporation may appeal to the District Court against—

(a)a review decision; or

(b)a decision as to an award of costs and expenses under section 148.

(3)However, neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the claimant.

[9]    In a decision dated 21 May 2024, Judge P R Spiller concluded that s 149(3) represented an insurmountable statutory bar to an appeal against the reviewer’s decision.4 The Judge observed:

[23] …this Court has previously affirmed that the District Court has no jurisdiction to hear an appeal relating to a  Code  complaint,  because  section 149(3) precludes this Court from giving any consideration to a review decision the purports to be consideration of a Code complaint. This Court has further noted that the Corporation’s primary decision under the Code cannot be the subject of an appeal, as this is by way of rehearing in accordance with section 155(2).

…

[25] In view of the above considerations, this Court is bound to hold, in terms of section 149(3) of the Accident Compensation Act, that Mr Easthope does not have the right to bring his present appeal to this Court.

[10]   Mr Easthope applied to the District Court for leave to bring a further appeal. Section 162(1) of the Act provides that a party to a District Court appeal decision who

3 At [48].

4      Easthope v Accident Compensation Corporation [2024] NZACC 087.

considers it wrong in law may,  with  the  District Court’s  leave,  appeal  to  the High Court. Mr Easthope submitted Judge Spiller made an error of law by declining to interpret s 149(3) in light of the New Zealand Bill of Rights Act, the Human Rights Act 1993, the Crimes of Torture Act 1989 and the Crimes 1961. He accused ACC of criminal conduct and submitted the Judge’s conclusion was contrary to s 3 of the Act. That section provides that one purpose of the Act is to facilitate rehabilitation and fair compensation, and that the Judge should have held that those broad statutory purposes override the specific statutory prohibition on a further appeal in s 149(3).

[11]Judge A A Sinclair dismissed Mr Easthope’s leave application.5 She observed:

[21]    Section 3 sets out the purpose of the accident compensation scheme.  It does not override the subsequent specific provisions of the Act. Section 149 specifies who may appeal against a review decision. Section 149(3) states that neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the claimant. There is no discretion provided.

[12]   Judge Sinclair concluded Mr Easthope had not identified an error of law in Judge Spiller’s decision, nor had he identified any question of law capable of bona fide and serious argument which might warrant the grant of leave to appeal.6

[13]   Mr Easthope now seeks special leave under s 162(3) of the Act, which permits the High Court to grant special leave to appeal. It is apparent he remains under several misapprehensions about the relevant law. Most fundamentally, Mr Easthope sought to characterise his complaint as something other than dissatisfaction with the outcome of his Code complaint. He said it was ACC who had forced him to adopt the framework of the Code, and that what he really wanted was exemplary damages under s 319 of the Act.

[14]   I attempted  to explain that ACC does not award exemplary damages under    s 319. Rather, s 319 provides a narrow statutory exception to the otherwise absolute bar on claims for damages arising from personal injury. In other words, if Mr Easthope were entitled to exemplary damages, nothing in the Act would prevent him from bringing proceedings to recover them.

5      Easthope v Accident Compensation Corporation [2024] NZACC 149.

6      At [24]

[15]   In any event, Judges Spiller and Sinclair were undoubtedly correct in their approach.    Regardless  of  how  he  characterised  his  complaint,  the  decision    Mr Easthope seeks to challenge assessed the destruction of his file against the requirements of the Code. Section 149(3) prevents the District Court from hearing appeals against decisions arising from complaints under the Code. There was no jurisdiction for an appeal to the District Court against that decision, and there is no jurisdiction for a further appeal to this Court.

[16]   That conclusion does not affect any other rights Mr Easthope may have. ACC acknowledged long ago that it destroyed his file. It has twice apologised for doing so. It is unclear how the destruction of Mr Easthope’s ACC file might have caused him harm or delayed his surgery; as the reviewer noted, his medical records would have remained intact. But a Code complaint, even if successful, would not have entitled Mr Easthope to compensation. If he has a right to compensation, he may still pursue it, regardless of the outcome of his Code complaint.

[17]   Mr Easthope argued I should read an exception into s 149(3) which recognises the “unique” nature of his case. In a document he filed after the appeal, he suggested I should recognise the systemic abuse which he said has underpinned his interactions with ACC over many years. He also submitted I should direct ACC to settle the claim for $3 million in light of the suffering he sustained during the 26 years in which his injury remained untreated, and that his complaint should not be turned away because of a technicality. He urged me to set a new precedent, and to prefer justice over procedure.

[18]   There is no proceeding before the Court that would allow an award of damages to be made, nor can I direct ACC to offer a settlement. If Mr Easthope has an ongoing entitlement to compensation, it is essential he takes legal advice as to what that might be. But his appeal against the outcome of the Code complaint can go no further. That is not a technicality or a matter of procedure. In New Zealand all appeal rights are created by statute, and there is an express statutory prohibition on an appeal in this case.

Conclusion

[19]   It is clear Mr Easthope sustained a serious injury, which has had a long-term effect on his life. There is no way of knowing, from the material before me, whether he has always received the compensation and support to which he was entitled. Nonetheless, it is clear no question of law arises from Judge Spiller’s refusal to entertain Mr Easthope’s appeal. Section  149(3)  is  clear  in  its  wording,  and  Judge Sinclair was right that the courts have no discretion to disregard it.

[20]   It follows Judge Sinclair was plainly correct to reject Mr Easthope’s application for leave to appeal to this Court, and that any appeal would be bound to fail.

Result

[21]Mr Easthope’s application for special leave to appeal is dismissed.

[22]I make no order as to costs.

Boldt J

Solicitors:

Medico Law Limited, Auckland for Respondent