Harvey v Accident Compensation Corporation - [2023] NZHC 489

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-000611

[2023] NZHC 489

UNDER The Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to appeal under section 162

BETWEEN

NATHAN JOHN HARVEY

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 9 February 2023

Appearances:

B H Woodhouse for Applicant

C J Curran and N J Fenton for Respondent

Judgment:

13 March 2023

JUDGMENT OF GRICE J

(Application for special leave to appeal)

Introduction

[1] This is an application for special leave to appeal against a decision of the District Court upholding an Accident Compensation Corporation (the Corporation) review decision declining Mr Nathan Harvey weekly compensation.1 An application for special leave to appeal was declined in the District Court.2

1 Harvey v Accident Compensation Corporation [2022] NZACC 23 [the substantive decision]. The decision of the reviewer is dated 24 July 2018.
2 Harvey v Accident Compensation Corporation [2022] NZACC 170 [the special leave decision].

HARVEY v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 489 [13 March 2023]

[2] The facts underlying the claim for weekly compensation are not in dispute and are set out in the substantive decision. The following summary outlines the general background to the claim.3

[3] Prior to his injury, Mr Harvey worked as a cray fisherman. In 2011, Mr Harvey tripped and injured his back on a boat, and was granted cover by the Corporation. Mr Harvey injured his back again in November 2013 by falling backwards on a boat and was again granted cover. In February 2014, the Corporation began paying Mr Harvey weekly compensation. Mr Harvey continued to feel pain and his symptoms did not resolve. However, in May 2014, Mr Harvey’s orthopaedic surgeon, Mr Michael O’Malley, wrote to the Corporation saying that the 2013 injury had caused a disc prolapse, but that this had now been resolved. Instead, Mr O’Malley believed Mr Harvey’s symptoms at that point were caused by an issue with his sacroiliac joint, which was due either to his initial injury or the stiffness induced by the disc prolapse. On 10 June 2014, Dr Kevin Tyree provided a medical certificate to the Corporation stating that Mr Harvey was fit to return to work on 24 June 2014. Mr Harvey was then advised by the Corporation that his weekly compensation had ended, with effect from 23 June 2014.

[4] Following this, Mr Harvey reported that he had improved and was more physically able. By 2015, however, the pain had returned. In June 2016, Mr Harvey was again declared unfit for work for a period of two weeks. Mr Harvey has not worked since.

[5] In mid-2017, the Corporation contacted Dr Tyree and Mr O’Malley to comment on Mr Harvey’s inability to work. Dr Tyree commented that Mr Harvey had a disc prolapse and a right sacroiliac issue. Mr O’Malley, however, stated that he thought it unlikely that the current symptoms from the lower back pain were from the initial 2013 injury.…

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 489
Decision Date: 13 March 2023

CaseChat Overview and Summary

The case of Harvey v Accident Compensation Corporation concerns an application for special leave to appeal against a decision of the District Court, which upheld a review decision by the Accident Compensation Corporation (ACC) declining Mr Nathan Harvey's claim for weekly compensation. The primary issues in the case revolve around whether the District Court Judge erred in his approach to causation and whether there was a failure to properly consider the medical evidence provided by Dr Iain Bell. The applicant argues that the Judge failed to adopt the correct test for causation and did not determine if the 2013 injury materially contributed to his incapacity. Additionally, the applicant contends that the Judge improperly rejected Dr Bell's evidence without adequate reasoning.

The High Court, in its analysis, found that the District Court Judge did not make any error of law in his approach to causation. The Judge correctly referred to relevant authorities and his use of the term "direct causal nexus" was in line with the case of Gazzard v Accident Compensation Corporation, where the Judge was distinguishing between incapacity caused by degenerative conditions and that caused by a covered injury. The Court found that even if there was a technical inaccuracy in the Judge's use of the term, it did not result in a material error of law, as the Judge concluded that Mr Harvey had not established a causal link between his 2013 injury and his ongoing incapacity. The Judge's finding was well-supported by the evidence, and he provided adequate reasons for preferring the evidence of other specialists over that of Dr Bell. The Court concluded that Mr Harvey had not identified a seriously arguable question of law and that the appeal grounds were largely factual.

The Court also noted that even if there were a question of law, the application for special leave to appeal would not be granted as it did not meet the special leave threshold. The issue of causation, while important, was not a novel question of law that had not already been dealt with in earlier cases. Moreover, the prospects of success for the appeal were low given the factual findings that no causal link had been established between the 2013 injury and Mr Harvey's current incapacity. The application for special leave to appeal was therefore declined.

Orders