Gilmore v Accident Compensation Corporation - [2016] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-000121 [2016] NZHC 1594

BETWEEN
JODIE GILMORE

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 15 June 2016

Appearances:

A C Beck for Applicant
H A Evans for Respondent

Judgment:

14 July 2016

JUDGMENT OF DUNNINGHAM J

[1] In September 2001 the Accident Compensation Corporation (ACC) accepted Ms Gilmore’s claim for a neck sprain injury which she said stemmed from a trampolining accident on 21 October 2000.

[2] In January 2013 ACC decided to revoke that decision under s 65 of the Accident Compensation Act 2001 (“the Act”). It did this because, in 2012, it undertook a comprehensive investigation into Ms Gilmore’s contemporaneous medical records and decided they did not support her claim to have sustained a neck injury on 21 October 2000 of such a nature to have caused the subsequent symptoms she has experienced.

[3] Ms Gilmore appealed ACC’s decision, but her appeal was rejected by

Judge Powell in a decision issued on 30 January 2015.1 She then applied for leave to

appeal to the High Court and that was rejected by Judge Harrison in a decision which issued on 4 February 2016.2

[4] Ms Gilmore now applies for special leave to appeal the decision of Judge Powell on the grounds that the decision is wrong in law, as required by s 162 of the Act.

[5] For leave to be granted I must be satisfied that there is a question of law to be argued and that it reaches the threshold required to justify allowing a further right of appeal to this Court.

Background

[6] On 10 August 2001 ACC granted Ms Gilmore cover for a neck sprain injury which she said was suffered as a result of a trampolining accident on
21 October 2000. Ms Gilmore was 13 years old at the time of the accident. In her written account provided to ACC in 2012 she says that she attempted a forward roll onto a trampoline where she injured her neck and, initially, was unable to move at all until the father of one of her friends managed to manipulate her neck. Although she says she was in severe pain, she was camping with friends at the time, so no medical assistance was sought on the day of the accident, nor when she returned home early the next day. However, both Ms Gilmore and her mother say that they saw Ms Gilmore’s general practitioner Dr Robert Morten, two days after the accident and he prescribed rest as well as medication for her ongoing pain.

[7] Between 2001 and 2009, after ACC granted cover, there was extensive medical investigation of Ms Gilmore’s condition. However, x-rays and MRIs found nothing abnormal in her neck. At least two medical practitioners, Mr Dunbar and Dr Alan Walker, considered that the muscle pain and spasm she was experiencing suggested she was suffering from a disorder like fibromyalgia.

[8] During this period Ms Gilmore experienced a variety of ongoing disabling symptoms, including pain and…

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: [2016] NZHC 1594
Decision Date: 14 July 2016

CaseChat Overview and Summary

This case concerns a claimant's application for special leave to appeal a decision of the District Court judge. Jodie Gilmore claimed cover under the Accident Compensation Act 2001 (the Act) for a neck sprain injury she said she sustained in a trampolining accident in 2000. The Accident Compensation Corporation (ACC) accepted her claim in 2001 but, in 2013, decided to revoke that decision after obtaining her contemporaneous medical records. The revocation decision was reviewed and dismissed in 2013 and, subsequently, leave to appeal to the High Court was refused. Ms Gilmore now seeks special leave to appeal the decision of the District Court judge. The legal issues in this case are whether there is an arguable question of law that the District Court judge failed to apply the correct test for revocation under the Act and whether the District Court judge failed to take into account relevant evidence in making its decision. The High Court rejected Ms Gilmore's application for special leave. The Court found that there was no arguable question of law that the District Court judge failed to apply the correct test for revocation. The Court also found that the District Court judge did not ignore the evidence of the experts. Instead, the judge found that the experts' reports did not cast doubt on the revocation decision. The Court found that the District Court judge's findings were open to him on the materials before him. The application for special leave was dismissed.

Orders