Hemmings v Accident Compensation Corporation HC Wellington CIV 2009-485-1790

[2010] NZHC 326

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2009-485-1790

IN THE MATTER OF     An intended appeal under s 162 of the

Injury Prevention, Rehabilitation & Compensation Act 2001

BETWEEN  NEVILLE HEMMINGS Applicant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         24 February 2010

Counsel:         A C Beck for the Applicant

H A Evans for the Respondent

Judgment:      17 March 2010 at 10am

I direct the Registrar to endorse this judgment with a delivery time of 10am on the

17th  day of March 2010.

RESERVED JUDGMENT OF MACKENZIE J

[1]      This is an application for special leave to appeal to this Court, under s 162(3)

of  the  Injury  Prevention,  Rehabilitation,  and  Compensation  Act  2001,  against  a decision of the District Court.

[2]      The applicant suffered a back injury in 1997 which was accepted for cover under the  Accident  Rehabilitation  and  Compensation  Insurance  Act  1992. On

6 May 2002, the respondent (ACC)  issued  a  decision  terminating  the  applicant’s

entitlements.  That decision was upheld on  review.  The  applicant appealed to the

HEMMINGS V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2009-485-1790  17 March

2010

District Court.  That appeal was not heard until November 2007,[1]  and was dismissed

[1] Hemmings v Accident Compensation Corporation HC Dunedin 267/2006, 21 November 2007.

in a judgment delivered on 24 December 2007.  Leave to appeal was sought from the District  Court. Leave  was  refused  in  a  judgment  dated  21 August 2009. This application for special leave was filed on 9 September 2009.

[3]      An appeal under s 162 is confined to an appeal on a question of law.  The test

for the grant of leave is that stated by Doogue J in Impact Manufacturing Limited v ARCIC.[2]    The applicant must show an error of law capable of bona fide and serious argument  that  requires  to  be  resolved  in  the  interests  of  justice. The  applicant submits that that test is met here.  Counsel submits:

[2] Impact Manufacturing Limited v ARCIC HC Wellington AP266/00, 6 July 2001

22.The [applicant’s] case is that the District Court Judge erred in law in the following respects:

22.1By  failing  to  apply  the  statutory  test  for  exclusion  from cover.

22.2By  failing  to  take  into  account  all  the  relevant  evidence relating to the physical cause of the [applicant’s] pain.

22.3By rejecting the evidence of Dr Borowczyk without a proper basis.

22.4By misinterpreting the report of Mr Finnis, and reaching an incorrect conclusion on the issue of causation.

[4]      It is not appropriate, on this application for leave, to embark upon a lengthy description of the facts, or on a detailed discussion  of  the  merits  of  the  proposed appeal. The issue is whether there is a sufficient question of law. A brief description of the relevant facts is all that is necessary for a discussion of that issue here.

[5]      The applicant was diagnosed with a disc prolapse at L4/5 following his back injury in 1997.  Surgery was recommended, and was approved by ACC in December

1997 but was not carried out until June 2000.  ACC obtained a report from Dr Xiong

on 15 March 2002. In that report he expressed the opinion that the applicant’s impairment and symptoms in the low back were caused substantially by degenerated changes rather than injury related factors. Following  a  request  for  clarification

Dr Xiong, in a report dated 29 April 2002,  said  that  it  would  be  very  difficult  to

.

attribute  a  percentage  figure  in  terms  of  pre-existing  degeneration  against  injury related  trauma.                He  said  that  he  would  regard  the  degenerative  changes  as  the underlying  causes  for  more  than  85  per  cent  of  the  applicant’s  current  medical impairment  and  in  his  opinion  there  was  very  little  contribution  from  the  injury related trauma.

[6]      In  a  letter  to  the  applicant  dated  6 May 2002  the  applicant  was  advised: “With  respect  to  your  back  injury  ACC  has  determined  that  you  no  longer  have entitlements  for  this  injury  …”.  Reference  was  made  to  s 10  of  the  Accident Rehabilitation and Compensation Insurance Act 1992.  That section provided, for the avoidance of doubt, that  personal injury caused  wholly or substantially by gradual process  disease  or  infection  is  not  (with  some  limited  exceptions)  covered  by  the Act.

[7]      The applicant sought a review of that decision and obtained an opinion from

Dr Borowczyk. He expressed the opinion that the applicant’s current state was a direct consequence of his original injury and resulted in secondary changes with the effect of the disc continuing to give particularly intractable chronic pain.  In a review decision delivered on 16 September 2003 the reviewer found that the burden of proof rested with the applicant and that that onus had not been discharged. The application

for  review  was  accordingly  dismissed.     As  that  decision  was  given  in  2003,  the reviewer, in finding that the burden of proof rests with the applicant, did not have the benefit   of   the   decision   of   this   Court   in   Ellwood   v   Accident   Compensation Corporation.[3]

[3] Ellwood v Accident Compensation Corporation [2007] NZAR 205

[8]      On the applicant’s appeal to the District Court, Judge Beattie noted that s 10

of the 1992 Act, referred to in ACC’s original decision of 6 May 2002, was not in any way applicable. The Judge adopted the pragmatic approach, in accordance with the submissions of both counsel, of treating ACC’s decision as a decision to suspend

or cancel an entitlement under s 117 of the 2001 Act, rather than as the revision of

the original decision in 1997 to grant cover and entitlement.  The Judge reviewed the

medical evidence which had been before the reviewer.  He also had the benefit of a further report received from Mr Finnis, a neurosurgeon, dated 17 April 2007.

[9]      The first alleged error of law as set out in [3] is that the Judge failed to apply the statutory test for exclusion from cover.  Mr Beck submits that the onus resting on ACC to show that termination was justified required ACC to  establish,  on  the balance of probabilities, that the applicant’s ongoing condition was caused “wholly

or  substantially  by  the  ageing  process”  in  terms  of  s 10(2)  of  the  1992  Act. He further  submits  that  it  was  necessary  for  ACC  to  exclude  the  possibility  that  any degeneration was a consequence of trauma;  that the Court did not identify the cause of the degeneration present in the applicant’s spine, and that it is seriously arguable that the statutory test was not satisfied.

[10]     Cover for the 1997 injury is governed by the 1992 Act. The applicant’s injury, a  L4/5 disc  prolapse,  was  accepted  by  ACC  for  cover. The  question  of possible exclusion under s 10, on the basis that that injury had been caused wholly or substantially by gradual process, did not arise. The appeal, as the Judge identified, was as to the correctness of ACC’s decision of 6 May 2002 cancelling entitlements. The Judge described the grounds for that decision  as  being  that  the  applicant’s ongoing back problems were not attributable to the covered injury but were wholly

or substantially attributable to degeneration and the ageing process.  A key question was whether the problems from which the applicant was suffering in 2002 were still

a  consequence  of  the  1997  injury  or  whether  those  problems  were  the  result  of  a gradual process of degeneration resulting from age or other cause than the injury.

[11]     Judge Beattie  approached  the  matter  on  the  basis  that  the  relevant  question was  whether  ACC  had  correctly  exercised  a  power  to  suspend  or  cancel  an entitlement under  s 117  of the 2001  Act.   In dealing with that question,  the Judge discussed   and   applied   the   decision   of   this   Court   in   Ellwood   v   Accident Compensation Corporation.  He said:

[28]     This  Court  now  must  look  at  the  evidence  in  the  light  of  the  test required of it as set out in Ellwood, namely is the evidence clear to the effect that the Corporation could say that it was not satisfied that there was a right to continued entitlement. As Justice Mallon said, if the evidence is unclear or uncertain, that test cannot be met.

[29]     The matter which the Corporation required to be not satisfied about

in  the  case  of  this  appellant  was  that  his  ongoing  lower  back problems were attributable to the back strain injury consisting of the prolapsed disc which he suffered in April 1997 and which was the covered injury.

[12]     I consider that there is  not a seriously arguable  question as to whether  that was  a  correct  formulation  of  the  issue.   That  is  to  say I  consider  that  no  arguable error of law, sufficient to satisfy the test for the granting of leave to appeal, arises in respect of the application by the Judge of the relevant statutory provisions, in that formulation of the issues.

[13]     The  next  three  alleged  errors  of  law  set  out  in  [3]  all  relate  to  the  way  in which the Judge dealt with the evidence, and his findings based upon the evidence. Counsel for the applicant submits that, in holding that the applicant’s condition was attributable to the advancing of the degenerative processes which have brought about advanced spinal stenosis, the District Court effectively concluded that, because there was some evidence of degeneration the applicant’s condition could not possibly be covered as personal injury.

[14]     The circumstances in which a question of law may arise in such a case are set out by the Supreme Court in Bryson v Three Foot Six Ltd in these terms:[4]

[4] Bryson v Three Foot Six Ltd [2005] 3 NZLR 721.

[25]An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It  is for the Court to weigh the relevant facts in the light of the applicable law. Provided that  the  Court  has  not  overlooked  any  relevant  matter  or  taken account of some matter which is irrelevant to the proper application of  the  law,  the  conclusion  is  a  matter  for  the  fact-finding  Court, unless it is clearly insupportable.

[26]An ultimate conclusion of a fact-finding body can sometimes be so insupportable  –  so  clearly untenable  –  as  to  amount  to  an  error  of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the  well-known  words  of Lord Radcliffe  in  Edwards v  Bairstow,  a state  of  affairs  “in  which  there  is  no  evidence  to  support  the determination”  or  “one  in  which  the  evidence  is  inconsistent with and  contradictory  of  the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.26 Lord Radcliffe  preferred the  last of these three  phrases  but  he said that each propounded the same test. In Lee Ting Sang itself the Privy

Council  concluded  that  reliance  upon  dicta  of  Denning  LJ  in  two cases “of a wholly dissimilar character” may have misled the Courts in  Hong  Kong  in  the  assessment  of  the  facts  and  amounted  in  the circumstances to an error of law justifying setting aside concurrent findings of fact. Their Lordships were of the opinion that the facts pointed so clearly to the existence of a contract  of service that the finding that the applicant was working as an independent contractor was, quoting the words of Viscount Simonds in Edwards v Bairstow, “a  view  of  the  facts  which  could  not  reasonably  be  entertained”, which was to be regarded as an error of law. In Lee Ting Sang the facts demonstrated so clearly that the applicant was an employee that it was the true and only reasonable conclusion.

[27]It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe’s preferred phrase, “the true and only  reasonable  conclusion  contradicts  the  determination”,  faces  a very  high  hurdle.  It  is  important  that  appellate  Judges  keep  this firmly in mind.

[15]     As to the submission that the Judge failed to take into account all the relevant evidence relating to the physical cause of the applicant’s pain, Mr Beck submits that

it is seriously arguable that Judge Beattie erred in law by failing to take into account the  evidence  of  Dr Borowczyk  and  Mr Finnis  as  to  the  causal  chain  of  events resulting  in  the  ongoing  back  pain  suffered  by  the  applicant. Judge Beattie  did discuss their evidence.  He noted that Mr Finnis was reporting in support of a claim for surgery at L2/3.  He made a specific factual finding that there can be no basis for contending that any disc disruption at L2/3 is accident related.   I consider that the proposed appeal is in reality an attempt to revisit the Judge’s conclusions based on the evidence.  That involves factual questions, not a question of law.

[16]     As to the proposition that the Judge rejected the evidence of Dr Borowczyk without  a  proper  basis,  the  Judge  noted  Dr Borowczyk’s  opinion  that  all  the applicant’s  back  problems,  including  the  degenerative  changes,  were  secondary  to his injury.  He did not accept that opinion.  He said that Dr Borowczyk did not give reasons for that conclusion.  The Judge clearly formed the view that Dr Borowczyk’s opinion was not consistent with degeneration prior to the injury in April 1997.  The Judge described the evidence of degeneration from other causes as “overwhelming”. The proposition that the Judge erred in law in his treatment of that evidence is not made out.  This, too, involves factual conclusions, not a question of law.

[17]     The next proposition is that the Judge has misinterpreted Mr Finnis’ report. The  Judge  found  that  Mr Finnis’  report  did  not  support  the  applicant’s  contention that the applicant’s problems were also attributable to and secondary to his injury. He gave reasons for that conclusion.  He noted that Mr Finnis also identified that the underlying  structural  basis  of  the  applicant’s  problem  is  largely  degeneration  and spondylotic.   He  acknowledged Mr Finnis’ view that the degeneration  at  L2/3 had progressed partly as a consequence of the surgery necessitated by the 1997 injury. He held  that there  can be no basis for  contending that any disc disruption at  L2/3 (with which Mr Finnis’ report was primarily concerned) is accident related.   These are  factual  findings,  and  no  arguable  error  of  law  in  the  way  in  which  they  were reached, sufficient to justify the granting of leave to appeal, has been demonstrated.

[18]     In summary, all of the matters relied on by the applicant involve findings of fact with which an appellate Court, which is confined to questions of law, should not interfere.       The  Judge’s  findings  on  the  medical  reports,  and  his  acceptance  or rejection  of  opinions  expressed  in  these  reports,  are  factual  findings  which  do  not raise questions of law of a sort which justifies a further appeal.

[19]     For  these  reasons,  the  application  for  special  leave  to  appeal  must  be declined.  If issues as to costs arise, counsel may submit memoranda.

“A D MacKenzie J”

Solicitors:            Andrew Beck, Wellington for Applicant

Young Hunter, Christchurch for Respondent