YZ v Accident Compensation Corporation

[2021] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2246

[2021] NZHC 1060

BETWEEN

YZ

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

On the papers

Counsel:

Appellant in person

B Johns for Respondent

Judgment:

13 May 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 May 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Claro Solicitors NZ, Wellington

YZ v ACCIDENT COMPENSATION CORPORATION [2021] NZHC 1060 [13 May 2021]

[1]    In my judgment of 2 March 2021, I declined YZ’s application for leave to appeal against a decision of the District Court in respect of his claim for compensation for erectile dysfunction, alleged to be a treatment injury induced by Vincristine treatment.1 I did so on the basis I could identify no error of law arising from the main grounds upon which YZ sought leave to appeal, namely, that:2

(a)contrary to the finding in the District Court at [32], medical evidence was produced by him – namely, all of his medical records dating back to 1993, which showed, among other things, he had no history of cardiovascular disease; and

(b)both Drs Brown and Anderson recognised that Vincristine could case ED but wrongly attributed the cause of his ED to cardiovascular disease.

[2]I explained:3

[8]     I consider no error of law arises from these grounds.  First, the Court at [32] was referring to the absence of direct medical evidence supporting an inference of causative link between YZ’s treatment and his ED rather than the absence of medical records. Second, it is clear that the Judge was aware of the potential for ED to be caused by Vincristine but made findings of fact that there was no such linkage on the available evidence in YS’s case for the purposes of s 32 of the Act which provides the causation requirements to establish a treatment injury. While YZ is highly critical of those findings for a variety of reasons, they were clearly available to the Judge in light of the evidence before her.

[3]    In the course of that judgment I identified a matter that might, in the right case, give rise to a question of law, namely, an apparent policy of the District Court to exclude scientific publication unless they are provided by a medical or scientific expert for the purpose of background information supporting the written or oral opinion of that expert or illustrating the difficulty which the experts introduce to the Court. I found, however, that this was not the right case. I noted:4

[11]  … The articles relied on by YZ were produced to me. They suggest  that Vincristine treatment might cause ED. But that basic proposition was not in dispute. It is quite plain, as I have said, that the Judge proceeded on the basis that Vincristine may cause ED but concluded that in YZ’s case, there was no such link for the purposes of s 32. The Judge had a clear and proper foundation for that conclusion.

1      YZ v Accident Compensation Corporation [2021] NZHC 344 [High Court judgment].

2 High Court judgment, above n 1, at [7].

3      High Court judgment, above n 1.

4 At [11].

[4]YZ now seeks leave to appeal on the following point of law:

That two medical consultants stated that I had irreparable nerve damage to all nerve centres from my hands to my feet. Which was also supported by international medical consultants.

[5]    It is immediately evident to me that YZ is seeking not to raise a question of law but to challenge the merits of the findings made by the District Court in relation to the cause of his erectile dysfunction. Assuming jurisdiction to do so, I would not grant leave to appeal accordingly.

[6]    However, YZ’s application for special leave to appeal faces the greater problem of jurisdiction. Ordinarily, as with leave to this Court, leave to the Court of Appeal may only be on a question of law. Section 163 of the Accident Compensation Act 2001 (the Act) states:

163     Appeal to Court of Appeal on question of law

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

…

[7]    As noted by the Court of Appeal in Howard v ACC, however, it is well established5 that “a refusal by the High Court to grant special leave to appeal to that Court under s 162 of the Act is not a ‘determination or decision of the Court on appeal’ for the purposes of s 163 of the Act.”6

[8]In support of this finding, the Court noted:

5      Lister v Accident Compensation Corporation [2011] NZCA 625; Khan v Accident Compensation Corporation [2009] NZCA 260, (2009) 19 PRNZ 730; Elliston v Accident Compensation Corporation [2010] NZAR 320 (CA); McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843 (CA).

6      Howard v ACC [2013] NZCA 617 at [14].

(a)a decision refusing to grant special leave is not an appeal, “it is a different genus of determination or proceeding. Thus it cannot give rise to a determination or decision ‘on the appeal’”;7

(b)in light of the Supreme Court’s decision in Simpson v Kawerau District Council, a decision refusing special leave to appeal is not “a decision on appeal”, but “simply a decision that no appeal shall be permitted”;8 and

(c)it is apparent Parliament deliberately used the words “on the appeal” in s 163, as opposed to the earlier wording of “in the proceedings”.9

[9]    Accordingly, as there is no jurisdiction and special leave is declined. Furthermore, as already noted, I do not consider that the proposed questions on appeal identify a question of law.

[10]   For completeness, I note if YZ has obtained fresh expert medical evidence as to his condition and the cause of it, that might be a reason for ACC to reconsider the position. Nothing in the leave judgments precludes that potential.

7      At [15], citing McCafferty v Accident Compensation Corporation, above n 3, at [7] and Elliston v Accident Compensation Corporation, above n 3, at [4].

8      At [16], citing Simpson v Kawerau District Council (2004) 17 PRNZ 258 (SC) at [5].

9 At [17].