Robertson v Accident Compensation Corporation - [2015] NZHC 2489

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-712 [2015] NZHC 2489

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an intended appeal under s 163 of that
Act

BETWEEN

CASSANDRA ROBERTSON Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Resondent

Hearing:
11 May 2015

(Further submissions received 17 and 24 June 2015)

Counsel:

C L Hollingworth for Applicant
A K Miller for Respondent

Judgment:

12 October 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The applicant, Mrs Cassandra Robertson, has end-stage renal failure. She requires daily dialysis treatment. Mrs Robertson applies, pursuant to s 163 of the Accident Compensation Act 2001 (the Act), for leave to appeal to the Court of Appeal against a decision of this Court,1 upholding a decision of the District Court2 that Mrs Robertson does not have cover under the Act for the consequences of a
delay in diagnosis of the condition which is the cause of her renal failure.

1 Robertson v Accident Compensation Corporation [2014] NZHC 762.
2 Accident Compensation Corporation v Robertson [2011] NZACC 327 (DC).

ROBERTSON v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2489 [12 October 2015]

Background

[2] The cause of Mrs Robertson’s renal failure is, she accepts, a condition known as IgA Nephropathy. That condition is also known – Wikipedia and the Mayo Clinic tell me – as Berger’s disease, an immune mediated condition with no known cause and which has no specific therapy.

[3] Mrs Robertson was diagnosed with IgA Nephropathy in late January 2004. She was, at the time, 30 years old and the mother of five children aged three to 13. The specialist who made that diagnosis was of the opinion that, in the years 2002 and 2003, there had been three clinical problems which should have alerted a physician to the presence of a chronic kidney problem.

[4] Mrs Robertson applied for cover, saying her renal failure was a treatment injury.

[5] The general purpose of the Act is, as is well known, to provide compensation and, as importantly, assistance in recovery, for persons who suffer injury by accident. The boundary of what is “injury by accident”, relative to the physical harm caused by disease, medical treatment and their effects, is not easy to fix. That is especially the case in the area of what can loosely be termed “medical misadventure”. Mrs Robertson’s application for cover, and ACC’s response both reflect the complexity of the scheme of the Act in this area. The operative provisions, for the purposes of this application, are ss 20, 26, 32 and 33.

[6] Section 20 determines when a person has cover, that is the right to the compensation and other benefits the Act provides. Subsection (1) reads:

A person has cover for a personal injury if—

(a) he or she suffers the personal injury in New Zealand on or after
1 April 2002; and

(b) the personal injury is any of the kinds of injuries described in s 26(1)(a) or (b) or (c) or (e); and

(c) the personal injury…

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: [2015] NZHC 2489
Decision Date: 12 October 2015

CaseChat Overview and Summary

In Robertson v Accident Compensation Corporation, Mrs Cassandra Robertson sought leave to appeal to the Court of Appeal against a decision of the High Court which upheld a decision of the District Court that Mrs Robertson did not have cover under the Accident Compensation Act 2001 (the Act) for the consequences of a delay in diagnosis of the condition which is the cause of her renal failure. Mrs Robertson argued that the High Court had not answered the question of law posed and that, therefore, the same question arose for determination on further appeal to the Court of Appeal. Mrs Robertson argued further that answering that question in these circumstances involved three further, or constituent, questions: whether Goddard J applied the correct test for cover under s 20 of the Act; whether the acceleration rule applies in ACC cases where a treatment injury accelerates an incurable underlying condition; and whether Goddard J failed to apply the exacerbated personal injury concept from Accident Compensation Corporation v Stanley to Mrs Robertson’s case. Clifford J declined Mrs Robertson’s application for leave to appeal to the Court of Appeal. Clifford J found that Goddard J had answered the legal question put, and had done so in the affirmative. Clifford J also found that Goddard J did not take an overly strict or otherwise legally incorrect approach to causation.

Orders