Matthews v Accident Compensation Corporation
[2022] NZCA 8
•3 February 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA665/2019 [2022] NZCA 8 |
| BETWEEN | MAYBELLE KAPETA MATTHEWS |
| AND | ACCIDENT COMPENSATION CORPORATION |
| Hearing: | 25 November 2021 |
Court: | Kós P, French and Brown JJ |
Counsel: | A C Beck and P G Schmidt for Appellant |
Judgment: | 3 February 2022 at 9 am |
JUDGMENT OF THE COURT
AWe answer the first question submitted for determination by the Court under s 163 of the Accident Compensation Act 2001:
Was the High Court wrong to conclude that the first question of law posed by Collins J was moot, and accordingly, decline to answer it?
Answer: No.
BThe appeal is dismissed.
CWe make no award of costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
[1]Ms Matthews is the personal representative of her deceased partner Mr Auerua Aria. Before his death, Mr Aria lodged a claim with the Accident Compensation Corporation (ACC). The claim which was lodged as long ago as 2007 has been the subject of various decisions in both the District Court and High Court. Its procedural history can fairly be described as something of a quagmire.
[2]It came before us as the result of Ms Matthews being granted special leave under s 163 of the Accident Compensation Act 2001 (the Act)[1] to appeal a decision of Grice J in the High Court. Grice J’s decision was itself an appeal from the District Court.[2] Grice J held the appeal was moot.[3]
[3]As we will explain, it became apparent at the hearing in this Court that the quagmire was largely due to the fact the claim has morphed over time. It also became apparent that there was a way out of the quagmire which we are hopeful this judgment will facilitate.
Background
[1]Matthews v Accident Compensation Corporation [2020] NZCA 449 [Court of Appeal special leave judgment].
[2]Aria v Accident Compensation Corporation [2017] NZACC 38 [District Court substantive judgment].
[3]Matthews v Accident Compensation Corporation [2019] NZHC 1509 [High Court substantive judgment] at [36].
[4]In 1974, shortly after the Accident Compensation scheme first came into force, Mr Aria was injured in a motorcycle accident. He sustained serious soft tissue and vascular injuries to his right leg and required surgery to try and correct some of the internal damage. He was left with a fixed flexion deformity being unable to fully extend his right knee and with an ankle that remained in a fixed position (ankle equinus). This meant he had to walk on the tips of his toes on his right foot.
[5]At the time of the accident, Mr Aria was only 17 and not working and so therefore not eligible for weekly earnings compensation. He did not make any claim to ACC.
[6]In 1975 Mr Aria gained employment at a meat processing plant. Despite his limp, he worked full time for almost all of the ensuing years until 2008.
[7]On 25 April 2007, he was bitten by an insect resulting in the right leg becoming infected and ulcerating. He had to take time off work. In June 2007, Mr Aria filed a claim form with ACC relating to the infected leg. The form recorded the date of the accident as the date of the insect bite.
[8]Unfortunately, the ulceration would not heal. It was eventually discovered that the popliteal artery in the leg which had been damaged in the 1974 accident was almost totally occluded. Surgery was required to restore circulation. It is common ground that the circulation problems were entirely the result of the 1974 accident.
[9]Then followed two operations.
[10] The first operation was undertaken in May 2008. The following month, Mr Aria filed another ACC claim form relating to the leg ulcer. This time the claim form identified the relevant accident as the motorcycle accident on 2 August 1974.
[11] Unfortunately, the operation was unsuccessful. The existing ulcers did not heal and new ones appeared on Mr Aria’s ankle. Mr Aria was advised that if the next attempt at restoring some circulation was also unsuccessful, his lower leg might need to be amputated.
[12] A second operation was undertaken in September 2008. This time the surgeon was able to bypass the damaged artery and the ulcers ultimately healed.
[13] Mr Aria never returned to work and his employment was eventually terminated.
[14] The claim he had lodged following the first operation based on the 1974 accident was accepted and ACC paid him weekly compensation commencing from May 2008. However, in September 2009, ACC considered it had made those payments in error because Mr Aria had not been employed in 1974 when he had suffered the injuries to his leg. ACC stopped the payments in December 2009.
[15] Mr Aria unsuccessfully sought a review of the decision to stop the payment.
[16] He lodged an appeal to the District Court but the appeal was subsequently withdrawn because the position taken by ACC was upheld in other proceedings.
[17] Then in 2015, Mr Aria sought cover on a different basis, namely that the personal injury that was causing his ongoing incapacity was the 2007 injury rather than the 1974 injury. If that were correct, it would make a significant difference because at the time of the insect bite Mr Aria had been an earner.
[18] ACC investigated this new basis and further medical reports were obtained. One report opined that Mr Aria had been unfit to work since 1974 and that his right leg deformity meant he should never have undertaken the work he did.
[19] In November 2015, ACC concluded that Mr Aria was entitled to compensation in relation to the 2007 injuries but that the period of cover was only temporary because those injuries had fully healed by December 2009. Any ongoing incapacity after 2009 was caused by the earlier 1974 injury in respect of which there was no cover. ACC therefore reaffirmed its earlier decision to stop payment in December 2009.
[20] Mr Aria then applied for a review of the November 2015 decision and when that was unsuccessful, appealed to the District Court. Tragically before the appeal was heard, he died in a boating accident in November 2016.
[21] The litigation was then carried on by Ms Matthews.
[22] The appeal was heard by Judge Mathers. The Judge who dismissed the appeal identified the issue before her as being:[4]
… whether the 2007 covered injury was the cause of Mr Aria’s incapacity to return to work after 2009, or whether his incapacity arose from the deformity of his ankle and hence caused by the 1974 accident.
[4]District Court substantive judgment, above n 2, at [37].
[23] Judge Mathers held it was the latter.[5]
[5]At [38].
[24] Ms Matthews sought leave to appeal from Judge Mathers’ decision to the High Court but was refused leave.[6] Undaunted, she applied to the High Court for special leave to appeal which was granted by Collins J.[7]
[6]Aria v Accident Compensation Corporation [2018] NZACC 73 [District Court leave judgment].
[7]Matthews v Accident Compensation Corporation [2018] NZHC 2769 [High Court special leave judgment].
[25] In granting special leave to appeal to the High Court, Collins J held there were two questions of law relating to causation that should be addressed:[8]
(a)Can a further physical injury that aggravated a pre-existing physical injury be a cause of incapacity under cl 32 of sch 1 and s 103 of the Act?
(b)If so was Mr Aria’s inability to return to work caused by the aggravation of his pre-existing knee flexion and/or ankle equinus (as opposed to the original injuries themselves)?
[8]At [14].
[26] The leave judgment contains a statement that after the second surgery in 2008, the knee and ankle deformities had become worse than they were before the surgery. There was evidence to that effect in one of the medical reports. In light of the Judge’s statement, it is arguable the leave questions were intended to raise issues about the causative effect of the surgery on incapacity as opposed to the causative effect of the injuries caused by the insect bite. But that is not clear. A claim about injuries caused by surgery would be a treatment injury claim, requiring a new inquiry as to whether the injury was covered under s 20(2)(b) of the Act. Mr Aria’s claim was not and never had been a treatment injury claim.
[27] Certainly, when the matter came before Grice J to answer those questions, she did not interpret them as being about the effects of the surgery. And nor it would seem did counsel. As recorded by the Judge, what was argued in the High Court was that two elements of the 1974 injury (the knee/ankle deformity and skin fragility) were potentially aggravated by the 2007 injury.[9]
[9]High Court substantive judgment, above n 3, at [26].
[28] Grice J held that both questions before her were moot because Judge Mathers had made a finding of fact that once the ulcers had healed, the only incapacity was that caused by the 1974 accident. There was no other contributor. Grice J considered whether Judge Mathers’ finding of fact was supported by the evidence and concluded that it was.[10]
[10]At [33] and [35]–[36].
[29] As Grice J noted, skin fragility was a new argument raised for the first time in the High Court.[11] It was not part of the two questions on which leave had been given. Although not required to, Grice J considered the point but rejected it on the grounds the evidence did not support a claim that the skin problems caused incapacity other than the need for Mr Aria to take particular care of the skin on his right leg.[12]
[11]At [22]–[23].
[12]At [34].
[30] Grice J therefore dismissed the appeal and subsequently refused to grant leave to bring what would be a third appeal to this Court.[13]
[13]Matthews v Accident Compensation Corporation [2019] NZHC 3125 [High Court leave judgment].
[31] As already mentioned, this Court did however grant special leave to appeal. Leave was granted on the same two questions in respect of which Collins J had granted leave (albeit slightly rephrased) with an additional third question.
[32] The three questions were:[14]
(a) Was the High Court wrong to conclude that the first question of law posed by Collins J was moot and, accordingly, to decline to answer it?
(b) If so, can treatment for a physical injury suffered by an earner in 2007, which aggravates the effect of an earlier physical injury suffered by that person when they were in 1974 not an earner, be a cause of incapacity under cl 32 of sch 1 and s 103 of the Accident Compensation Act 2001?
(c) If so, was Mr Aria’s inability to return to work caused by the aggravation of his pre-existing knee flexion and/or ankle equinus (as opposed to the original injuries themselves)?
Discussion
[14]Court of Appeal special leave judgment, above n Error! Bookmark not defined., at [44].
[33] With the benefit of fuller argument, it has become apparent that these questions are problematic.
[34] The right of appeal to this Court under the Act is limited to questions of law.[15] Question 3 however is a question of fact.
[15]Accident Compensation Act 2001, s 163(1).
[35] More fundamentally all three questions are premised on the basis that what is in issue is an argument about the effects of the surgery, something which as already mentioned was never part of the claim.
[36] To demonstrate how the goal posts have kept changing, in her leave decision Grice J recorded that one of the questions of law which Mr Beck wanted to raise in this Court was that she had erred in finding the incapacity was caused by the circulatory surgery rather than either the 1974 injury or the 2007 injury.[16] Grice J did not accept that she had made any such finding. Mr Beck persisted in this argument about an error in his written submissions in this Court. However, as the oral argument unfolded it became apparent that the causative effects of the surgery were now a main plank of the appellant’s case.
[16]High Court leave judgment, above n 13, at [31].
[37] Mr Beck argued that important and general legal principles relating to causation were raised by this proceeding. He also emphasised that the Act is social legislation and that it would be unjust were Mr Aria’s claim to be defeated by technicalities especially after all these years. He suggested there was sufficient evidence in the various medical reports to enable us to answer questions about the causative significance of the surgery.
[38] We acknowledge that the Act must be interpreted liberally having regard to the purpose of the legislation.[17] However, that does not mean it is appropriate for new claims to be raised on appeal especially an appeal limited to questions of law. There has to be some rigour to the analysis. Contrary to Mr Beck’s submission, we are also not persuaded there is sufficient evidence in the trial record to enable us to properly and fairly make any factual findings about the causative effect (if any) of the surgery on Mr Aria’s incapacity even if we had the jurisdiction to undertake such an inquiry.
[17]Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [19] per Elias CJ and [130] per McGrath J; and Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA) at 438 per Richardson J.
[39] While some of the medical reports certainly identify a worsening of the flexion deformities after the surgery, it is not clear that the condition was permanent. There is a suggestion for example that it was thought it would or had improved. Crucially, the experts were never asked to address the question which is now being asked of us.
[40] In the absence of any lower court decision about the causative significance of the surgery and any evidence directed to the issue, we are satisfied that the claim must start afresh before the focus can properly shift to the impact of the 2008 and 2009 treatment.
[41] As Mr Laurenson QC submitted on behalf of ACC, if that is to be the new focus, it would be open to Ms Matthews to seek to establish entitlement to weekly compensation on the basis that the relevant personal injury for the purpose of s 103 of the Act is either:
(a)a claim for treatment injury under ss 20(2)(b) and 32 of the Act; or
(b) a claim under s 20(2)(d) that the worsening of the equinus and flexion deformity is a personal injury that is a consequence of a treatment for a personal injury for which he has cover being either the 1974 injury or the 2007 injury.
[42] These new pathways would require ACC to undertake further investigations. However, Mr Laurenson advised that if Ms Matthews would like to pursue a new claim based on those new pathways, ACC is willing to re-engage and would do so with an open mind and as we understand it without raising any time limitation issue. As Mr Laurenson further pointed out, Ms Matthews would also have the benefit of full review and appeal rights.
[43] The decision is of course for Ms Matthews to take but it does appear to us that this is the most appropriate way forward.
[44] Where then does all this leave the proper disposition of the current appeal?
[45] First, in our view, the answer to the first question of law for determination must be “no”. As Grice J understood the question (that it referred to the causative effects of the 2007 injury), she did not err in finding it was moot on the basis of the factual findings in the District Court. If the question she was asked to determine was intended to mean treatment injury then it may not have been moot but that was not the then basis of the claim.
[46] The first question being answered in the negative, the remaining two questions fall away and the appeal must be dismissed.
[47] It is however appropriate to record the ACC position in regards to the second question. ACC conceded that in principle the answer to question two as posited in this Court’s leave decision was “yes”. That is to say, ACC accepted that in principle, treatment for a physical injury suffered by an earner which aggravates the effect of an earlier physical injury suffered by that person when they were not an earner can be a cause of incapacity under cl 32 of sch 1 and s 103 of the Act.
[48] Finally, as regards costs, these were not sought by ACC. We therefore make no award.
Outcome
[49] We answer the first question submitted for determination by the Court under s 163 of the Act:
Was the High Court wrong to conclude that the first question of law posed by Collins J was moot, and accordingly, decline to answer it?
Answer: No
[50] The appeal is dismissed.
[51] We make no award of costs.
Solicitors:
Hazel Armstrong Law, Wellington for Appellant
Accident Compensation Corporation, Wellington for Respondent
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