Porter v Accident Compensation Corporation - [2023] NZHC 926

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001775

[2023] NZHC 926

UNDER the Accident Compensation Act 2001

IN THE MATTER

of a special leave application pursuant to s 162 of the Act

BETWEEN

KYE PORTER

Plaintiff

AND

ACCIDENT COMPENSATION CORPORATION

Defendant

Hearing: 20 April 2023

Appearances:

B Hinchcliff for the Applicant F Becroft for the Respondent

Judgment:

26 April 2023

JUDGMENT OF WALKER J

[Application for special leave to appeal]

This judgment was delivered by me on 26 April 2023 at 11 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PORTER v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 926 [26 April 2023]

[1] This is an application for special leave to appeal against a decision of the District Court upholding a decision of the Accident Compensation Corporation (the Corporation) to revoke accident compensation cover.

[2] On 23 September 2019, the Corporation approved Mr Porter’s lumbar spine surgery and cover for lumbar disc prolapse with radiculopathy. The approval notification stated that information had been received from Mr Porter’s treatment providers confirming additional injury(s) caused by an accident in 2005.

[3] In September 2020, following a file review, the Corporation revoked cover and declined loss of potential earnings compensation. In the notification to Mr Porter, it said:

ACC has looked carefully at all the information now available and has decided that this claim should not have been accepted. This is because we received new medical information, including imaging taken at the time of the accident, which does not support a causal link between the accident and the injury.

[4] Mr Porter’s review of those decisions was unsuccessful. He appealed to the District Court. In a reserved judgment issued on 3 May 2022, Judge P R Spiller found that the Corporation correctly revoked cover on the basis that evidence which confirmed there was no disc prolapse following the accident many years earlier had been overlooked. Consequently, he dismissed the appeal.1

[5] Mr Porter’s application for leave to appeal was dismissed by Judge C J McGuire by judgment issued on 25 August 2022.2 The Judge found none of the questions of law identified by Mr Porter are capable of bona fide and serious argument.

[6] The application comes before this Court under s 162 of the Accident Compensation Act 2001 (the Act). The High Court may grant special leave to appeal on a question of law provided that it reaches the threshold required to justify allowing a further right of appeal to this Court.

1 Porter v Accident Compensation Corporation [2022] NZACC 71 at [45].
2 Porter v Accident Compensation Corporation [2022] NZACC 169.

Background

[7] The background is set out in the District Court decision. In summary, Mr Porter fell from a horse in 2005 at the age of 14. He suffered a back injury. He was granted cover for a lumbar sprain at that time. An MRI scan at the time of this accident reported (in part):

There is minor…

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: [2023] NZHC 926
Decision Date: 26 April 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Kye Porter sought special leave to appeal a decision of the District Court which dismissed his appeal against the Accident Compensation Corporation's (the Corporation) revocation of accident compensation cover for a lumbar spine surgery. The Corporation revoked the cover after reviewing new medical evidence, including an MRI scan from the time of the original accident in 2005, which did not support a causal link between the accident and the injury. Porter's appeal to the District Court was dismissed on the basis that the Corporation had correctly revoked cover because evidence confirming there was no disc prolapse following the accident had been overlooked. The key legal issue was whether the Corporation had sufficient grounds to revoke cover based on the original decision being made in error. The Court examined whether there was a question of law capable of bona fide and serious argument.

The Court found that the District Court correctly applied the law and identified multiple factual grounds to establish that the Corporation's original decision had been made in error. The Court concluded that the evidence overlooked by the Corporation at the time of the original decision confirmed there was no disc prolapse at the time of the accident. The Court also found that the MRI scan report, while it contained a reference to a disc bulge, did not amount to evidence of a traumatic disc injury and did not imply the Court erroneously found there was no disc bulge. The Court therefore declined the application for special leave to appeal.

The Court dismissed the application for special leave to appeal. No orders for costs were sought by the Corporation.

Orders