Morgan v Accident Compensation Corporation
[2019] NZHC 2494
•2 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-1049
[2019] NZHC 2494
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an application for special leave to appeal under s 162 of the Act
BETWEEN
JEREMY DAVID MORGAN
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Date of hearing: 1 October 2019 Appearances:
R S Pidgeon for the applicant F L Becroft for the respondent
Date of judgment:
2 October 2019
JUDGMENT OF JAGOSE J
The judgment was delivered by me on 2 October 2019 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules
……………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
R S Pidgeon Barrister, Auckland Medico Law, Auckland
MORGAN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2494 [2 October 2019]
[1] Under s 162(3) of the Accident Compensation Act 2001, the applicant, Jeremy Morgan, seeks special leave to appeal Judge Henare’s 8 November 2018 decision in the District Court at Auckland – dismissing Mr Morgan’s appeal against a review decision denying him compensation by the respondent Corporation, in relation to alleged symptoms of his topical exposure to the pesticide paraquat – as being wrong in law.1
Background
[2] On 20 August 2014, Mr Morgan raised a claim for compensation with the Corporation, on the basis of his “exposure to paraquat spray in contracting work” in December 1997, to which he attributed various debilitating physical symptoms. A substantial body of medical evidence generally was supportive of the proposition Mr Morgan’s symptoms were consistent with chronic fatigue syndrome.
[3] For Mr Morgan, Dr Damian Wojcik initially assessed him as suffering “significant current disability from chronic fatigue syndrome and multiple chemical sensitivity”, later confirming the latter to have been “triggered by a single point exposure to paraquat”. For the Corporation, Dr Ruttenberg noted Mr Morgan’s functional disorders as wider than chronic fatigue syndrome, and incorporating multiple chemical sensitivity, but without attribution to paraquat toxicity and “with no obvious evidence of structural, mechanical or other derangement”. Dr Ruttenberg commended reference to the Corporation’s Toxicology Panel. At Mr Morgan’s request, the Corporation also sought advice from Dr Black, an independent specialist in occupational medicine, who considered Mr Morgan’s “best diagnosis” remained chronic fatigue syndrome, but disputed such could be caused by chemical exposure (and doubted multiple chemical sensitivity’s applicability). The Toxicology Panel could find “no papers linking paraquat specifically to chronic fatigue syndrome or multiple chemical sensitivities”. It concluded “the whole of the evidence did not rise above the level of possibility to the extent that an inference of causation could be drawn”.
1 Morgan v Accident Compensation Corporation [2018] NZACC 179.
[4] The Corporation initially declined cover on grounds there was “no link between paraquat exposure and chronic fatigue syndrome”, which it later affirmed. Such a decision is susceptible to review by an independent person who is to consider the matter afresh on its substantive merits.2 Mr Morgan’s review of the Corporation’s decision was dismissed “on the balance of probabilities … [his] employment tasks and environment did not cause or contribute to the cause of a personal injury”.
District Court decision(s)
[5] Judge Henare dismissed Mr Morgan’s appeal against the Corporation’s review decision. She concluded “the weight of the evidence shows that Mr Morgan’s [chronic fatigue syndrome] has not been caused by pesticide exposure in the work place”.3
[6] The Judge identified it was for Mr Morgan to “prove he suffered a personal injury and that the injury was linked to his work tasks”.4 On appeal, Mr Morgan relied also on a Professor Murdoch, who attested such medical evidence as there was “do[es] not establish causation but show[s] exposure to toxic chemicals is a trigger to [chronic fatigue syndrome] in a small percentage of cases”.5 The Judge found the issue – “whether [Mr Morgan] ha[d] suffered a physical injury and whether that was caused by his exposure” – was not established on the balance of probabilities.6
[7] Judge G M Harrison refused leave to appeal Judge Henare’s decision, observing “the medical evidence did not establish any physical injury generally … [or] as a result of paraquat exposure at work”:7
No error of law has been identified and no question of law for submission to the High Court has been formulated. At best, the application relies upon an erroneous factual finding by the Judge in that she should have found the applicant to be suffering from [multiple chemical sensitivity] rather than [chronic fatigue syndrome]. For the reasons given, there was abundant evidence for her to find that the relevant condition was [chronic fatigue syndrome]. Even if a finding had been made that [multiple chemical sensitivity] was the relevant condition, there was still no evidence that exposure to the pesticide would have caused that.
2 Accident Compensation Act 2001 (the “Act”), s 145(1).
3 Morgan v Accident Compensation Corporation, above n 1, at [67].
4 At [24]–[27], with reference to s 30(2) of the Act.
5 At [44].
6 At [62] and [65].
7 Morgan v Accident Compensation Corporation [2019] NZACC 54 at [17] and [21].
Special leave to appeal
[8] The scope of an appealable error of law is well-understood: it is the decision be “clearly insupportable” as a proper application of the law, whether by mistaking the applicable law, disregarding relevant matters, considering irrelevancies, or otherwise being “clearly untenable”.8
[9] There is longstanding principle a second appeal for which special leave is required presents a high threshold, requiring demonstration of qualifying error of meaningful principle or substance on which there is a reasonable prospect of success, and the interests of justice require leave be granted.9 Articulations of the principle are legion:10
The Court will exercise this power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.
Discussion
[10] Mr Morgan’s counsel, Richard Pidgeon, says the qualifying error of law is Judge Henare’s failure to consider multiple chemical sensitivity as the result of Mr Morgan’s exposure to paraquat. In reliance on New Zealand Transport Agency v Architectural Centre Inc, he says – presented with alternatives: chronic fatigue syndrome or multiple chemical sensitivity – the Judge was bound to give both adequate consideration.11 Such is important to those affected by chemicals in their workplace as to warrant further appellate consideration.
8 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[28].
9 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].
10 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5], citing Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18]; Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington AP266/00, 6 July 2001; Khan v Accident Compensation Corporation HC Auckland CIV-2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corporation [2012] NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
11 New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991, (2015) 19 ELRNZ 163 at [146]–[147].
[11] However, New Zealand Transport Agency v Architectural Centre Inc does not stand for the proposition ‘adequate consideration’ is required as a matter of law to be given to alternatives. Rather, on an appeal as to a question of law, the question is “whether the true and only reasonable conclusion contradicts the [Judge’s] conclusion”, such being “a very high hurdle”.12
[12] It is plain the proposed appeal here is not of a question of law at all, but of fact; a question “about what actually took place”:13 whether the Judge should have concluded Mr Morgan’s symptoms were better characterised as multiple chemical sensitivity. Even if capable of serious argument in this case, that proposed question also is not important: the critical factor in the Judge’s decision was the absence of evidence of any physical injury to Mr Morgan, such being a necessary precondition to cover for personal injury. In those circumstances, finality of litigation now is desirable.
[13] The Judge’s decision is clearly supportable, as is obvious from the medical evidence. It is very far from being untenable. There is no qualifying error.
Result
[14]The application for special leave to appeal is dismissed.
Costs
[15] In my preliminary view, as the successful parties, the Corporation is entitled to 2B costs and disbursements.14 That is because, from what I presently know of it, nothing in the steps taken by it in this averagely complex proceeding required other than a normal amount of time.15
[16] If that is not accepted by the parties, and they cannot otherwise agree, costs are reserved for determination on short memoranda of no more than five pages – annexing
12 At [161]–[162], citing Bryson v Three Foot Six Ltd, above n 8, at [24]–[28].
13 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35], cited in Nixon v Walker HC Auckland CIV-2007-404-1372, 13 July 2007 at [25]; Shell (Petroleum Mining) Co Ltd v Vector Gas Contracts Ltd [2014] NZHC 31 at [43]; and Commerce Commission v Harmoney Limited [2017] NZHC 1167, (2017) 14 TCLR 572 at [30].
14 High Court Rules 2016, rr 14.2(1)(a), (c) and (g).
15 Rules 14.3(1) and 14.5(2).
a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by the Corporation within ten working days of the date of this judgment, with any response and reply to be filed within five working day intervals after service.
—Jagose J
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