Studman v Accident Compensation Corporation - [2014] NZHC 574

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002706 [2014] NZHC 574

UNDER The Accident Compensation Act 2001

IN THE MATTER

of an application for leave to appeal to the Court of Appeal pursuant to s 163 of the Act

BETWEEN

BRIAN FREDERICK STUDMAN Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 7 March 2014

Appearances:

H J Peart for the Appellant
D Tuiqereqere for the Respondent

Judgment:

25 March 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on 25 March 2014 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:
H J Peart, Schmidt & Peart Law, Onehunga, Auckland
D Tuiqereqere, Medico Law Limited, Grey Lynn, Auckland

STUDMAN v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 574 [25 March 2014]

Introduction

[1] Mr Studman seeks leave to appeal my decision1 dated 4 October 2013 in which I allowed an appeal by the Accident Compensation Corporation (ACC) against a decision of Judge Joyce QC granting cover to Mr Studman for “injury manifesting in the form of untoward and excessive left hand stiffness”. Leave to appeal that decision had been granted by Judge Beattie who noted:

... there is a significant question of law in issue, namely whether the requirement of a treatment injury being a personal injury, that is a physical injury, as required by s 26 of the Act, has been established as a matter of fact and law in this case based on the evidence as presented to the Court.

[2] The essence of my decision was that no physical injury causing the “stiffness” had been identified and that stiffness was not by and of itself a physical injury as required by s 26(1)(b) of the Accident Compensation Act 2001 (the Act).

[3] On 26 February 2014 Mr Studman’s newly instructed lawyer, Mr Peart, produced a report that had been prepared about Mr Studman’s case by Mr Bruce Peat, one of the doctors who had previously examined Mr Studman. . In that report, which was dated 15 February 2014, Mr Peat set out his view about the cause of the stiffness to Mr Studman’s three fingers. Mr Peat identified several potential causes of Mr Studman’s problems including “excessive tissue damage” which Mr Peat explained “would result in pain and stiffness”.

[4] After considering this new evidence, on 28 February 2014, ACC’s lawyer

wrote to Mr Studman’s lawyer advising that it would grant him cover for:

Excessive tissue damage resulting in pain and stiffness to the left little, ring and middle fingers.

[5] ACC also agreed to contribute towards Mr Studman’s costs and invited him to withdraw his application for leave.

[6] Mr Peart advised that Mr Studman wished nonetheless to pursue the intended appeal. The critical issue identified by Mr Peart, is:

1 Accident Compensation Corporation v Studman [2013] NZHC 2598.

Whether personal injury for treatment injury purposes requires something beyond unusual and severe adverse consequences of surgical treatment.2

[7] This question is not, of course, quite the same…

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: [2014] NZHC 574
Decision Date: 25 March 2014

CaseChat Overview and Summary

Brian Frederick Studman sought leave to appeal against a decision of the High Court which had allowed an appeal by the Accident Compensation Corporation (ACC) against a decision of Judge Joyce QC granting cover to Mr Studman for "injury manifesting in the form of untoward and excessive left hand stiffness". The High Court had decided that no physical injury causing the "stiffness" had been identified and that stiffness was not by and of itself a physical injury as required by s 26(1)(b) of the Accident Compensation Act 2001 (the Act). Studman's lawyer subsequently produced a report by a doctor that set out his view about the cause of the stiffness to Studman's three fingers. The doctor identified several potential causes of Studman's problems including "excessive tissue damage" which the doctor explained "would result in pain and stiffness". Following the doctor's report, ACC granted cover to Studman for "excessive tissue damage resulting in pain and stiffness to the left little, ring and middle fingers" and agreed to contribute towards Studman's costs and invited him to withdraw his application for leave. Studman nonetheless wished to pursue the intended appeal. The critical issue identified by Studman's lawyer was whether personal injury for treatment injury purposes requires something beyond unusual and severe adverse consequences of surgical treatment. The Court held that leave should not be granted for the following reasons: first, Studman no longer had a private interest in the appeal; secondly, it was difficult to attempt to articulate a broader question of more general application; thirdly, the need for an identifiable "personal injury" in a treatment injury case had been made quite clear in a recent decision of the Court of Appeal. The Court held that the ordinary prerequisites for the grant of leave under s 163 of the Act could not be met and the even higher threshold required by virtue of the fact that the issues between Studman and ACC had now become moot was, necessarily, quite unattainable. Accordingly, the application for leave was declined.

Orders