Smith v Accident Compensation Corporation - [2023] NZHC 3841

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-1957

[2023] NZHC 3841

BETWEEN
SANDRA SMITH

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 31 October 2023

Appearances:

P Schmidt for the Appellant I Hunt for the Respondent

Judgment:

20 December 2023

JUDGMENT OF BECROFT J

[Application to adduce further evidence]

This judgment was delivered by me on 20 December 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors/Counsel:
Schmidt & Pearl Law, Auckland Young Hunter, Christchurch

S Hack, Accident Compensation Corporation

SMITH v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 3841 [20 December 2023]

What is this application about?

[1]This is an application for leave to adduce further evidence.

[2] The appellant seeks to adduce the evidence for a proposed appeal, on two questions of law, against a District Court decision about Ms Smith’s lump sum accident compensation entitlement.1 It is a complicated application. Both the factual and the procedural background require explanation.

[3] It is important to note that the application for special leave to appeal on the two questions of law to the High Court remains to be argued. Such application is required because the District Court refused leave to appeal.2 It was agreed between the parties, and directed by this Court, that this application should be heard first.3

[4] However, the two applications are intertwined. More so than might be expected. I was initially concerned that the result of this application might determine the special leave application. I now accept, as counsel agree, that is not the case.4 However, it has been virtually impossible to resolve this application without trespassing on the argument for leave to appeal. I have endeavoured to keep such encroachment to a minimum. This decision will at least provide useful background for the special leave application. I add that with the benefit of hindsight, the two applications could have been more efficiently heard together given the overlap of issues.

Facts

[5] Mrs Smith recently developed progressive expressive dysphasia5 resulting in focal intractable fits6 and right hemiplegia.7

1      Smith v Accident Compensation Corporation [2023] NZACC 47.
2      Pursuant to s 162(3) of the Accident Compensation Act 2001 [Act].
3      Smith v Accident Compensation Corporation HC Auckland CIV-2023-404-1957, 11 September 2023 (Minute of Muir J).
4      Although, according to Mr Schmidt for the appellant, if this application were successful, it would probably increase the likelihood of a success of the leave to appeal application.
5      Dysphasia is difficulty in expressing what a person wants to say.
6      Focal fits/seizures are fits/seizures during which the person is conscious/aware/alert; they are intractable in that they cannot easily be treated/controlled by medicines.
7      Paralysis of the right side of the body.

[6] This was a rare outcome of radiotherapy she underwent in October 1999 to treat a part of a brain tumour that could not be removed during surgery.

[7] These outcomes for Mrs Smith were accepted as not a necessary part, or ordinary consequence,…

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: [2023] NZHC 3841
Decision Date: 20 December 2023

CaseChat Overview and Summary

In Smith v Accident Compensation Corporation, Sandra Smith applied for leave to adduce further evidence in the form of an affidavit by Professor Meylan, a Professor of Mathematics, to support her appeal against the Accident Compensation Corporation’s (ACC) decision regarding her lump sum accident compensation entitlement. Smith sought to challenge the ACC’s apportionment method for determining the degree of permanent “whole-person impairment” (WPI). She argued that the method undervalued her impairment caused by injury and was unfair. Smith also wanted to argue that the term “exclude” in the relevant legislation required that the ACC not assess impairment caused by non-covered conditions, and that consideration of non-covered conditions was contrary to the legislation. The court denied Smith's application for leave to adduce further evidence. The court held that Professor Meylan’s affidavit was not fresh evidence, as it could have been obtained before the appeal to the District Court. The court further held that the proposed evidence did not significantly advance Smith’s case and would not assist in the task of focusing and confining the appeal to specific matters of law. The court emphasised that the question of the fairness of the formula and method, and the proposed alternative formula, required much more evidence than a single affidavit to enable the High Court to make any meaningful and firm conclusion or recommendation to ACC. The court concluded that even if the evidence was to be adduced, it could serve no useful purpose in establishing that the current formula and method were unfair or inappropriate. The court also noted that the proposed evidence had nothing to do with the second question for which leave would be sought, regarding the proper interpretation of the word “exclude” in the legislation. The court emphasised that its decision in the application for leave to adduce further evidence was far from determinative of the application for special leave to appeal.

Orders