Reilly v Accident Compensation Corporation - [2023] NZHC 10

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-000579

[2023] NZHC 10

BETWEEN
ALEXANDER REILLY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:
3 November 2022

Submissions: 28 November (AVL)

Appearances:

J P Miller for Appellant

J P Coates for Respondent

Judgment:

12 January 2023

JUDGMENT OF GRICE J

Re leave to appeal to Court of Appeal

REILLY v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 10 [12 January 2023]

Introduction

[1] This is an application for leave to appeal against a judgment dismissing an appeal (the High Court decision) against a decision of the District Court (the District Court decision).1 The District Court decision had dismissed an appeal against the decision of a Statutory Reviewer (the Statutory Reviewer’s decision).

[2] The effect of the High Court decision and the District Court decision was to uphold the original determination made by the Accident Compensation Corporation (the Corporation) declining cover to Mr Reilly (the appellant) for a claimed treatment injury.

[3] Mr Reilly had suffered ongoing effects resulting from Guillain-Barre Syndrome (GBS). The particular issue in relation to the appeal was the delay in treatment, which was said to be the “treatment injury”.2

[4] It was accepted by the Corporation that there had been an unacceptable delay of some seven-and-a-half to eight hours in getting Mr Reilly to Nelson Hospital to start treatment for the syndrome. The delay was due to incorrect medical advice given by an out-of-hours medical centre helpline that Mr Reilly’s mother had contacted for assistance.

[5] Diagnosis and appropriate treatment followed once Mr Reilly was at hospital. He spent three months in the Intensive Care Unit at Christchurch Hospital, where he had been airlifted to from Nelson Hospital. He was subsequently treated for some months at a specialist unit at Burwood Hospital in Christchurch.

[6] Mr Reilly continues to suffer severe effects from the syndrome, including tetraplegia. As the District Court noted, any predicted final outcome of Mr Reilly’s

1 Reilly v Accident Compensation Corporation [2022] NZHC 1008 [the High Court decision], dismissing an appeal against Reilly v Accident Compensation Corporation [2020] NZACC 158 [the District Court decision]. Leave to appeal the District Court decision to the High Court was granted in Reilly v Accident Compensation Corporation [2021] NZACC 140 [the leave judgment]. The present application for leave to appeal was heard over two days, on 3 November 2022 in person and 28 November 2022 by AVL.
2 The High Court decision, above n 1, at [4].

illness “must be guarded”, but he “may show more improvement in the next 2 or 3 years, although there could be some residual disability.”3

[7] The Corporation has not accepted the delay in treatment as a “treatment injury”. The Corporation has declined the claim on the basis that the delay was not causative of the serious effects of the syndrome on Mr Reilly, nor did the delay in treatment increase the severity of the effects of the syndrome.

[8] The focus of the…

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 10
Decision Date: 12 January 2023

CaseChat Overview and Summary

Alexander Reilly suffered ongoing effects from Guillain-Barre Syndrome (GBS) and sought compensation for treatment injury from the Accident Compensation Corporation (the Corporation). The Corporation declined cover. The Corporation accepted that there was a delay in treatment of some seven-and-a-half to eight hours. However, the Corporation maintained the delay was not causative of the severity of Mr Reilly’s tetraplegia or of the GBS/neurological injury he suffered. Mr Reilly appealed the Corporation’s decision to the District Court, which dismissed the appeal. Mr Reilly then appealed the District Court decision to the High Court, which also dismissed the appeal. Mr Reilly now seeks leave to appeal to the Court of Appeal. The question is whether there is a serious question of law capable of bona fide and serious argument in the case that involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. In my view, there is no such question in this case. The District Court Judge had considered the evidence before it and the principles of causation. The Judge did not make an error of law in finding that the delay in treatment was not causative of the severity of Mr Reilly’s tetraplegia or of the GBS/neurological injury he suffered. The application for leave to appeal to the Court of Appeal is dismissed.

Orders