Morgan v Accident Compensation Corporation - [2019] NZHC 2494

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…

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.

Keep reading for free

Create a free CaseChat account to read Morgan v Accident Compensation Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 2494
Decision Date: 2 October 2019

CaseChat Overview and Summary

Jeremy Morgan sought special leave to appeal the District Court’s decision dismissing his appeal against the Accident Compensation Corporation’s review decision, which denied him compensation for his alleged symptoms of topical exposure to the pesticide paraquat. The court was required to determine whether the appeal was of an error of law, and whether it was appropriate to grant special leave to appeal. The court held that the proposed appeal was not of a question of law but of fact, and that there was no qualifying error of law. The court further held that the interests of justice required finality of litigation, and that the question of law proposed was not important. The application for special leave to appeal was dismissed.

The court’s reasoning was based on the longstanding principle that 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. The court found that the proposed appeal was not of a question of law but of fact, and that 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. The court further held that the Judge’s decision was clearly supportable, and that there was no qualifying error. The court concluded that the application for special leave to appeal should be dismissed.

Orders