Reilly v Accident Compensation Corporation - [2022] NZHC 542

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 542

BETWEEN
ALEXANDER REILLY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 21 March 2022

Appearances:

J Miller for the Appellant

J Coates and R Mould for the Respondent

Judgment:

23 March 2022

JUDGMENT OF GRICE J

[1] This is an application to adduce further evidence in an appeal set down for hearing on 4 April 2022.

[2] The appeal is against a judgment of the District Court dismissing a decision of the District Court. That court dismissed an appeal against a decision of the respondent declining Mr Alex Reilly's application for a treatment injury claim.1

[3] On 17 September 2021, the District Court gave leave to appeal to the High Court against the Appeal Decision on a question of law, formulated as follows:2

1 Reilly v ACC [2020] NZACC 158 at [3] (the Appeal Decision).
2 Reilly v ACC [2021] NZACC 140 at [8]. The references are to provisions of the Accident Compensation Act 2001.

REILLY v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 542 [23 March 2022]

Did the District Court misconstrue the test for causation and/or incorrectly apply that test in relation to the treatment injury claim under sections 20(2)(b) and 32?

[4] The evidence sought to be adduced is from a medical expert, Dr Suzanne Davis, a paediatric neurology and neurophysiology specialist. Her report, dated 20 January 2022, has been provided to the Court for the purposes of this application. It was obtained by the respondent. It had approached the appellant to jointly brief a further expert on the basis that the reports and evidence before the Court will be some on appeal will be at least three years old by the time the appeal is heard. The respondent declined to be involved in a joint brief.

[5] The Accident Compensation Corporation (the Corporation) says it seeks to put the additional expert report before the Court in order for the Court to have the most up-to-date evidence, particularly when the issue involved relates to the causation by treatment injury and the degree of severity of the short and long-term effects of Guillain Barre syndrome. Mr Coates, for the Corporation, noted that treatment injury was the delay in treatment caused by inappropriate medical advice given in the onset of Guillain Barre syndrome. The syndrome was “rare, severe and biologically not well understood by medical science” and epidemiological studies and empirical data regarding the effect of such a delay are limited.3 The Corporation says the appellant is asking the Court to formulate a new test for causation to apply in cases where such rare conditions apply.

Background

[6] Mr Reilly, then aged 15 years, became unwell while the family was holidaying in the Nelson area in January 2017. The Corporation accepts that there was a seven-and-a-half to eight-hour delay in getting Mr Reilly to Nelson Hospital and treatment for the syndrome. This was due to wrong medical advice given by…

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 542
Decision Date: 23 March 2022

CaseChat Overview and Summary

In the case of Reilly v Accident Compensation Corporation, the High Court of New Zealand considered an application to adduce further evidence in an appeal set for hearing on 4 April 2022. The appeal was against a decision of the District Court dismissing a treatment injury claim made by Mr. Alexander Reilly against the Accident Compensation Corporation (ACC). The District Court had dismissed an earlier appeal against the ACC's decision to decline Mr. Reilly's claim. The primary legal issue before the court was whether the District Court misconstrued the test for causation and/or incorrectly applied that test under sections 20(2)(b) and 32 of the Accident Compensation Act 2001. The respondent sought to introduce an expert report from Dr. Suzanne Davis, a paediatric neurology and neurophysiology specialist, to address the causation and the severity of Guillain Barre syndrome. The court considered the principles governing the admission of new evidence on appeal and concluded that the evidence did not meet the high standard required for admission. The court noted that the evidence was not fresh, as it largely covered the same research as had been presented before the District Court. The court also considered the potential for delay and re-litigation of the case, which weighed against admitting the new evidence. Ultimately, the court dismissed the application to adduce further evidence, reserving costs.

Orders