YZ v Accident Compensation Corporation

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…