Robertson v Accident Compensation Corporation

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-712 [2014] NZHC 762

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an appeal under s 162 of that Act

BETWEEN

CASSANDRA ROBERTSON Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	25 November 2013
Counsel:	J M Miller and M L Bagnall for Appellant A K Miller for Respondent
Judgment:	14 April 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 14 April 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

John Miller Law, Wellington for Appellant

Claro, Wellington for Respondent

ROBERTSON v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 762 [14 April 2014]

Introduction

[1]      This is an appeal on a question of law from a decision of Judge Beattie in the District Court, reinstating a decision of the Accident Compensation Corporation (ACC), to decline the appellant cover for her condition under the Accident Compensation Act 2001 (the Act).

[2]      The question of law as stated is:

Whether a personal injury caused by the accelerated progression of an incurable underlying disease condition resulting from a failure in diagnosis can be covered as a treatment injury.

[3]      This case has had a lengthy history for reasons that are not apparent from a reading of the file. A brief chronology is as follows:

on  20  January 2004  Mrs  Robertson  was  diagnosed  with  end-stage  renal

failure;

on 9 June 2007 ACC declined Mrs Robertson cover for her condition as a

treatment injury;

on 19 February and 10 August 2010 ACC’s determination declining cover

was  reviewed and overturned in a decision delivered on 3 September 2010;

an appeal from the reviewer’s decision was heard by Judge Beattie in the

District Court on 25 October 2011, and his decision allowing ACC’s appeal

was delivered on 9 November 2011;

on 20 March 2013, Judge Joyce in the District Court granted Mrs Robertson

leave to appeal to the High Court on a point of law from Judge Beattie’s

decision.

Background

[4]      The  appellant  is  a  40  year  old  mother  of  five.     She  attended  multiple appointments with her general practitioner (GP) between August 1995 and January

2004.  In January and August 2002, urine specimens showed haematuria (blood in the urine) and proteinuria (excess protein in urine).   No further investigation was undertaken at the time.

[5]      On 13 January 2004, the appellant presented to her GP with a variety of symptoms.   A blood test revealed abnormal kidney function and, on 20 January

2004, she was referred to a nephrologist.  She was subsequently diagnosed with a condition  known  as  IgA nephropathy.    This  condition  resulted  in  the  appellant suffering end-stage renal failure which required her to immediately undergo daily dialysis treatment.

[6]      It is accepted that end-stage renal failure was inevitable in Mrs Robertson’s case.  The issue is whether the end-stage renal failure could have been delayed for up to two years had she been diagnosed and treated in a timely fashion.   If so, this would have given her two further…