TR v Accident Compensation Corporation
[2023] NZHC 2991
•26 October 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-320
[2023] NZHC 2991
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an application for special leave to appeal to the High Court pursuant to s 162(3) of the Act
BETWEEN
TR
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
On the Papers: Counsel:
Appellant in Person
F L Becroft for Respondent
Judgment:
26 October 2023
JUDGMENT OF ISAC J
[Application for special leave to bring appeal]
Introduction
[1] The applicant, TR, seeks special leave to appeal a decision of Judge McGuire upholding the Accident Compensation Corporation’s decision to decline her cover for an alleged personal injury caused by a work-related disease.1
[2] In 2014, TR was working as a doctor at Auckland Hospital. She tested positive for tuberculosis but on examination, the infection was considered latent. The
1 TR v ACC [2023] NZACC 27.
TR v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2991 [26 October 2023]
Corporation determined, after receiving medical reports, that the applicant had not suffered a personal injury caused by workplace exposure.
[3] On TR’s appeal from the Corporation’s decision, the District Court considered the available evidence and concluded that it did not establish that the applicant was suffering from tuberculosis and, even if she was, the infection was not active and therefore not a physical injury for the purposes of the Accident Compensation Act 2001.
[4] In her application to this Court for special leave to appeal, TR seeks to challenge the District Court’s decision on two broad grounds:
(a)first, she argues that there has been systemic fraud and corruption in the Corporation’s handling of her claim, which has affected the outcome;
(b)second, she challenges the District Court’s finding that she did not suffer from a personal injury caused by workplace exposure.
[5] The applicant did not appear at the scheduled hearing on 17 October 2023. I issued a minute later the same day recording that I would deal with the matter on the papers given the submissions and supporting materials TR had filed in support of her application.2
Legal principles
[6] A party to an appeal before the District Court from a decision of the Corporation who is dissatisfied with the decision as being wrong in law may, with the leave of the District Court, appeal to the High Court.3 If the District Court refuses to grant leave, the High Court may grant special leave to appeal.4
2 TR v ACC HC Wellington CIV-2023-485-182 and 320, 17 October 2023 (Minute of Isac J).
3 Accident Compensation Act 2001, s 162(1).
4 Section 162(3).
[7]The relevant principles are these:5
(a)The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.
(b)Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.
(c)The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course.
(d)It is for the applicant to show that leave is required in the interests of justice.
(e)As leave has already been refused by the District Court, there will normally have to be some extraordinary factor which has not properly been taken into account.
Background
[8] The applicant was employed by Auckland District Health Board during 2013 and 2014. In May 2014 she took time off work because she was unwell. Medical records suggest that she started having a cough in around June 2014. In August 2014, the applicant was visited by her mother, from Malaysia. Her mother was in New Zealand for a three-week period and then subsequently returned to Malaysia, where she tested positive for tuberculosis.
[9] In September 2014, the applicant underwent a QuantiFERON-TB Gold test, to test for tuberculosis. The test returned a positive result. The applicant was off work for a period while further investigations and prophylactic treatment for suspected latent
5 Kenyon v ACC [2001] NZHC 1301 at [15].
tuberculosis was undertaken. By mid-October 2014, the applicant was cleared to return to work.
[10] In early 2015, the applicant resigned and relocated to Australia, where she remains resident.
[11] In September 2018, the applicant filed an ACC claim for tuberculosis, referring to the positive QuantiFERON test in September 2014, and indicating that she had contracted tuberculosis as a result of workplace exposure.
[12] The claim was initially managed by a third-party provider, WellNZ, on behalf of the Corporation. WellNZ declined the claim on 15 October 2018. It however subsequently received further information from the applicant, and reinvestigated, obtaining notes from the Auckland District Health Board and the applicant’s general practitioner.
[13] WellNZ then arranged for an assessment to be undertaken by a specialist occupational physician, Dr Michael Antoniadis. He reported on 21 March 2019 and thought the probable diagnosis was latent tuberculosis.6 He did not think that there was any support for active tuberculosis at the time of the presentation in 2014, although noted she likely suffered from a respiratory tract infection during June and July of that year. He also recorded that the applicant said she had returned a negative QuantiFERON test approximately two weeks previously.
[14] Subsequently, the Corporation took over management of the claim and, on 5 June 2019, it was declined again.
[15] The applicant applied for a review of that decision which proceeded to hearing in October 2019 before Ms Sandhya Reddy. Ms Reddy concluded, in a decision dated 28 October 2019, that latent tuberculosis was not a physical injury because it is an inactive disease.7 She therefore found that the decision declining the claim was correct.
6 Latent tuberculosis is when a person is infected with mycobacterium tuberculosis but does not have active tuberculosis.
7 TR v ACC ICRA Wellington ICR-8000007, 29 October 2019 at 11–12.
[16] TR filed a late appeal against the review decision in June 2022, and leave to file the appeal out of time was granted by the District Court shortly thereafter.8
[17] For the appeal, the Corporation filed additional evidence from Dr Mary Obele, occupational specialist and principal medical advisor. Dr Obele questioned the diagnosis of even latent tuberculosis (noting the deficiencies with QuantiFERON tests) and concluded that, in any event, it was unlikely that the applicant would have contracted tuberculosis at work.
[18] The applicant also filed additional evidence, including a report from Dr Surjit Randhawa, a registered general medical practitioner in Malaysia, who said that the applicant could have had active tuberculosis in July 2014 (prior to testing) and that it could have been contracted at work.
The District Court’s decision
[19] The District Court had extensive material, including expert medical opinion, provided by both the applicant and the Corporation. Ultimately, the Court was not satisfied that a positive QuantiFERON Gold test was sufficient evidence that the applicant had tuberculosis mycobacterium. The Court noted that there was no further positive testing to support a diagnosis of tuberculosis.9 It went on to find that, even if TR had latent tuberculosis in 2014, this would be insufficient to meet the requirements of a personal injury in terms of s 26 of the 2001 Act.10 The Court’s final conclusion was:11
To summarise, I find on the balance of probabilities that the Applicant has never contracted TB. All her tests, but for one in 2014, have indicated that she does not have the mycobacterium. There is no evidence that she has sustained an injury as described by the Accident Compensation Act 2001.
[20] Subsequently, Judge Henare considered a leave application in May 2023. After noting that the threshold for an appeal based on an error of law arising from factual matters is a high one,12 she concluded that TR’s application was based principally on
8 TR v ACC [2022] NZACC 146.
9 TR v ACC, above n 1, at [72]–[73].
10 At [77]–[79].
11 At [81].
12 At [26] and [33]–[35].
Judge McGuire’s view of the evidence and factual conclusions.13 Ultimately, her Honour determined that there was nothing in the approach of the District Court to suggest that a tenable appeal on a question of law had been identified.14 She accordingly dismissed the application for leave to appeal to the High Court.
The applicant’s case
[21] TR in written submissions argues that Judge McGuire failed to properly engage with the evidence before dismissing her appeal. She noted that once she had tested positive using the QuantiFERON test in 2014, there could be no doubt that she continued to be infected with tuberculosis whether latent or not. Further testing, a matter identified by the Judge as an issue for appeal, was therefore an error.
[22] She also considers that the District Court’s finding that there was no tuberculosis infection failed to take into account the evidence in Dr Randhawa’s report of 26 September 2022. She also claims that the Judge “completely ignored” statements by a respiratory physician, Dr Lewis, and made inaccurate conclusions regarding QuantiFERON Gold tests.
Consideration
[23] While I acknowledge TR’s unhappiness with the conclusion of the District Court, no error of law has been identified which could support the grant of special leave in this case. There is no credible evidence to support the proposed appeal ground relating to allegations of fraud and corruption.
[24] As Ms Becroft submits, the threshold for an appeal against factual findings on the basis of an error of law is very high. The challenged factual finding must be one that, on the evidence, was not open to the decision-maker.15 Put another way, TR must establish that the factual conclusion of the District Court was so clearly untenable that
13 TR v ACC [2023] NZACC 82 at [27]–[31] and [36].
14 At [32] and [37].
15 O’Neill v ACC [2008] NZACC 250 at [24(v)], citing Edwards v Bairstow [1956] AC 14 (HL) at
36. See also Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [21], [25], [26] and [40], where the Supreme Court used the terms “clearly insupportable” or clearly untenable”.
application of the law required a different answer. However, the decision of the District Court was clearly open on the evidence before it. This included:
(a)Dr Antoniadis’ March 2019 report which considered latent tuberculosis unconnected from her employment as the probable diagnosis, and noted that the applicant had likely suffered from a respiratory tract infection in June or July 2014.16 He also confirmed that the applicant had not tested positive again for tuberculosis following the positive QuantiFERON test in 2014.
(b)Dr Obele’s advice of 6 December 2022, which explains the difference between latent and active tuberculosis and the shortcomings of QuantiFERON-TB Gold testing. Her opinion was that the applicant probably had a mild respiratory illness in mid-2014. She considered it was possible that the applicant had latent tuberculosis, but ruled out active tuberculosis. She also considered that the applicant was unlikely to have contracted tuberculosis from her work.
(c)A report of 15 October 2014 by Dr Becky Lane, respiratory registrar, which suggested a diagnosis of latent tuberculosis, but cleared the applicant for a return to work and did not appear to link the tuberculosis to any workplace exposure.
[25] It is also clear that the District Court considered the evidence of Dr Randhawa in reaching its decision, but ultimately preferred other evidence available to it, including that of Dr Obele.17 I am satisfied the Judge’s conclusions were open on the available evidence, and were neither insupportable nor untenable. The application must therefore be dismissed.
[26] Even if the District Court had been wrong in relation to its findings in terms of the QuantiFERON testing, it made a secondary finding that was dispositive of TR’s appeal: even if she had suffered from latent tuberculosis (as diagnosed by
16 Dr Antoniadis considered there was no evidence the applicant had contracted active tuberculosis.
17 TR v ACC, above n 1, at [44].
Dr Antoniadis), this was an inactive disease process and not a physical injury for which cover was available.
[27] Finally, as Judge Henare observed in considering TR’s application for leave, “there was insufficient evidence the condition was caused by workplace exposure”.18 The evidence of Dr Lane, Dr Antoniadis and Dr Obele is that the applicant is unlikely to have contracted latent tuberculosis from her workplace. Their opinions are unsurprising given other evidence suggesting that the applicant may have been exposed to tuberculosis as a result of a visit by her mother in 2013.19 Were it necessary, I would have found that on the material available there is an inadequate causal nexus between the possible latent infection and the applicant’s employment. That is a third and fundamental factual finding dispositive of the current application for special leave.
Conclusion and Result
[28] For the foregoing reasons, the application for special leave to appeal is dismissed.
[29]I do not understand costs to be an issue, but reserve leave to apply.
Isac J
Solicitors:
Medico Law Ltd, Auckland for Respondent
18 TR v ACC, above n 13, at [28].
19 Dr Obele also observed that transmission at work was unlikely given the appellant would have been required to wear adequate personal protective equipment. This was supported by the apparent absence of any public health response or investigation, which would be expected if health staff considered there to be a genuine risk of a work-related tuberculosis infection given the threat that would pose to patients and staff.