M v Accident Compensation Corporation - [2018] NZHC 1919

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR PARTICULARS LIKELY TO LEAD TO IDENTIFICATION OF APPLICANT.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-946

[2018] NZHC 1919

BETWEEN
M

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:
1 March 2018 (further submissions received 8 March 2018,

12 March 2018 and 16 March 2018)

Appearances:

T Mijatov for Applicant H Evans for Respondent

Judgment:

31 July 2018

JUDGMENT OF GRICE J

(Refusal of special leave to appeal decision of the District Court relating to accident compensation claim)

M’s chronic pain

[1] M has suffered chronic pain for some years.1 It dates back to hernia surgeries intended to repair initially an inguinal hernia and subsequently a small femoral hernia. M lodged an accident compensation claim with the Corporation on 15 February 2010. This claim was based on the pain that M was then suffering as the consequence of a surgery for a right inguinal hernia. The claim was rejected on 24 February 2010 on

1 The applicant’s name, address, occupation and particulars that could lead to her identification have been suppressed pursuant to s 160(1) of the Accident Compensation Corporation Act 2001 (the Act).

M v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 1919 [31 July 2018]

the basis it did not meet the criteria for a treatment injury, and no personal injury had been identified. M was unsuccessful on a review of that decision. M unsuccessfully appealed to the District Court in 2016.2 M then applied to the District Court for leave to appeal that decision to the High Court. That was refused.3 M now seeks special leave from the High Court to appeal against the 2016 decision of the District Court.4

[2] In order to obtain special leave to appeal M must establish an arguable question of law and identify a sufficient public interest, or matters at stake, to justify the second appeal.5

[3] The arguable question of law for consideration in dealing with this application is:

Did the District Court consider and correctly determine the claim for cover for post-surgical neuropathic pain following insertion of surgical mesh as a gradual process treatment injury under s 20(2)(f) of the Accident Compensation Act 2001.

[4] The application for special leave was filed out of time. An application for extension of time to file the application was made orally. I refuse that extension due to the relevant wording of the appeal provisions.6 This Court, accordingly, does not have jurisdiction to hear this matter.

[5] If I am wrong, I also find M has failed to establish the grounds required for a special appeal. I am of the view that the findings M wishes to appeal are factual findings rather than legal ones. Therefore, special leave would have been refused in any case.

[6]I will now consider the relevant parts of the District Court judgment.

2 M v Accident Compensation Corporation [2016] NZACC 182 [Substantive appeal decision].
3 M v Accident Compensation Corporation

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: [2018] NZHC 1919
Decision Date: 31 July 2018

CaseChat Overview and Summary

M, a chronic pain sufferer, sought an appeal against a decision of the District Court, which had dismissed her appeal against a decision of the Accident Compensation Corporation (ACC) that denied her claim for accident compensation. The appeal to the High Court was predicated on a question of law. The sole question of law that M argued was whether the District Court had erred in its determination that her pain was not a gradual process treatment injury under s 20(2)(f) of the Accident Compensation Act 2001 (the Act). The application for special leave to appeal was made out of time. The Court refused to extend the time for filing the application for special leave to appeal as the statutory time limit was mandatory. The Court also found that M had failed to establish an arguable question of law or a sufficient public interest to justify a second appeal. The application for special leave to appeal was dismissed.

Orders