Smith v Accident Compensation Corporation - [2024] NZHC 1801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-1957
[2024] NZHC 1801

UNDER The Accident Compensation Act 2001

IN THE MATTER OF An application for special leave to appeal
pursuant to section 162(3) of the Accident Compensation Act 2001

BETWEEN SANDRA SMITH

Applicant
ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 12 June 2024 Appearances: P Schmidt for the applicant
I Hunt for the respondent

Judgment: 4 July 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 4 July 2024 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SMITH v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 1801 [4 July 2024]

[1] The applicant, Mrs Smith, suffered a personal injury in July 2019. She was entitled to an independence allowance for that injury from the Accident Compensation Corporation (ACC). The amount of that allowance depended on the extent of her “whole-person impairment” from the injury. ACC referred Mrs Smith to a doctor for an assessment. The doctor assessed Mrs Smith’s whole-person impairment as 19 per cent. ACC issued a decision on Mrs Smith’s entitlement to an independence allowance based on that assessment.

[2] Mrs Smith applied for a review of that decision. The reviewer dismissed her application. Mrs Smith appealed to the District Court against the review decision.
On 24 March 2023, Judge C J McGuire dismissed Mrs Smith’s appeal.1

[3] Mrs Smith wishes to appeal against the decision of Judge McGuire. By s 162 of the Accident Compensation Act 2001 (the Act), she requires leave to appeal. On 26 July 2023, Judge P R Spiller declined leave to appeal.2 Mrs Smith now applies for special leave from this Court.

Background

[4] In October 1999, Mrs Smith had surgery to remove a brain tumour. Not all of the tumour could be removed. The part that remained was treated with radiotherapy.

[5] The tumour caused right homonymous hemianopia (loss of vision on the right side of the visual field of each eye). This was not covered by the Act or its predecessor legislation.

[6] In 2019, Mrs Smith developed progressive expressive dysphasia3 resulting in focal intractable fits4 and right hemiplegia.5 The cause of these problems was a rare outcome of her radiotherapy treatment in October 1999. Because this outcome was

¹      Smith v Accident Compensation Corporation [2023] NZACC 47.
²      Smith v Accident Compensation Corporation [2023] NZACC 123.
³      Dysphasia is difficulty in expressing what a person wants to say.
⁴      Focal fits are fits during which the person is conscious/aware/alert; they are intractable in that they cannot easily be treated/controlled by medicines.
⁵      Paralysis of the right side of the body.

not a necessary part, or ordinary consequence, of her treatment, it was a “treatment injury” for which Mrs Smith was covered under the Act.6

[7] In March 2020, ACC accepted that Mrs Smith had suffered a treatment injury. In November 2020, ACC referred Mrs Smith to Dr Keith Murray for…

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: [2024] NZHC 1801
Decision Date: 4 July 2024

CaseChat Overview and Summary

In the case of Smith v Accident Compensation Corporation, Mrs. Smith, who suffered a personal injury in 2019, sought an independence allowance from the Accident Compensation Corporation (ACC). The amount of her allowance depended on her degree of “whole-person impairment” from the injury. ACC assessed her whole-person impairment at 19 percent. Mrs. Smith argued that this assessment was flawed and appealed against the decision, but her appeal was dismissed by the District Court. Mrs. Smith now seeks special leave from the High Court to appeal against the District Court's decision. The primary legal issues in this case were whether the apportionment method prescribed in the ACC Handbook undervalues impairment caused by injury contrary to the Act, and whether the term “exclude” in clause 59(3)(b)(i) of the Act requires ACC not to assess impairment caused by non-covered conditions. The Court declined to grant special leave on the first question but granted leave on the question of whether the apportionment instructions in the ACC Handbook allow apportionment between different impairments or only allow apportionment of a particular impairment that is a result of multiple conditions, only some of which are covered by the Act. The Court found this question capable of bona fide and serious argument and one of principle with implications for a wide range of claimants beyond Mrs. Smith. The Court also noted that the proper interpretation of the ACC Handbook was not considered in the District Court, warranting "special" leave. As a result, Mrs. Smith is granted special leave to appeal on the specified question, while her application for special leave is otherwise declined. ACC is to pay Mrs. Smith her costs on the application on a 2B basis, subject to a 50 percent reduction, plus her reasonable disbursements.

Orders