Reilly v Accident Compensation Corporation - [2022] NZHC 1008

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-000579

[2022] NZHC 1008

BETWEEN
ALEXANDER REILLY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 7 April 2022

Appearances:

J P Miller for Appellant

J P Coates and R E Mould for Respondent

Judgment:

12 May 2022

JUDGMENT OF GRICE J

Re appeal

REILLY v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 1008 [12 May 2022]

Contents

Introduction[1]
Background[8]

Treatment Injury [17]

Case law — causation[19]
Legal principles on appeal[24]
The appellant’s case[25]
The test for causation[30]
The District Court decision — what did the Judge do?[50]
The medical evidence[98]
Conclusion[106]

Introduction

[1] This is an appeal against a judgment of the District Court (the District Court decision) which dismissed an appeal against the decision of a Statutory Reviewer.1

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

[3] Leave to appeal was given by the District Court to appeal to the High Court against the District Court decision.2

[4] The treatment injury, the subject of the appeal, was a delay in providing medical treatment. As a result of that delay, Mr Reilly became unwell with Guillain Barre Syndrome (GBS) while holidaying in the Nelson area in January 2017. He was then aged 15 years. The delay was accepted as being 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 through an out-of-hours medical centre helpline that Mr Reilly’s mother had contacted for assistance.

[5] Once Mr Reilly was taken to hospital, he was quickly diagnosed with GBS and treatment followed. However, Mr Reilly was seriously unwell, spending some three months in the Intensive Care Unit at Christchurch Hospital and subsequently being transferred for treatment to a specialist unit at Burwood Hospital in Christchurch. Mr Reilly continues to suffer severe effects from the syndrome, including tetraplegia. According to one medical specialist who has reviewed Mr Reilly’s case, any predicted final outcome of Mr Reilly’s illness “must be guarded.”3 The specialist is of the view Mr Reilly “may show more improvement in the next two or three years, although there could be some residual disability.”4 While the delay in treatment has been accepted by it as being a treatment injury, ACC has declined the claim on the basis that it was

1      Reilly v Accident Compensation Corporation [2020] NZACC 158 [District Court decision]; and Reilly v Accident Compensation Corporation [2021] NZACC 140 [Statutory Reviewer’s decision].
2      Reilly v Accident Compensation Corporation [2021] NZACC 140 [the leave judgment].
3      District Court decision, above n 1, at [54].
4 At [54].

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.

[6] Therefore, the focus of the appeal in…

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: [2022] NZHC 1008
Decision Date: 12 May 2022

CaseChat Overview and Summary

In Reilly v Accident Compensation Corporation, the Court was asked to determine whether the District Court had misconstrued the test for causation and/or incorrectly applied that test in relation to the treatment injury claim under sections 20(2)(b) and 32 of the Accident Compensation Act 2001. The appeal concerned a delay in the treatment of a teenager diagnosed with Guillain-Barre Syndrome (GBS), which the Accident Compensation Corporation (ACC) had declined to cover as a treatment injury. The High Court found that the District Court had correctly applied the legal test for causation as set out by the Court of Appeal in Accident Compensation Corporation v Ambros and had not erred in law. The Court confirmed that the test for causation required the claimant to prove on the balance of probabilities that the treatment failure was causative of the injury. The High Court held that the District Court's decision was supported by the evidence and that the medical evidence did not support the standard of proof required for causation in this case. The appeal was dismissed.

Orders