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Accident Compensation Cases

Beck v Accident Compensation Corporation (DC, 23/03/12)

Judgment Text

JUDGMENT OF JUDGE RODERICK JOYCE QC [ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A POINT OF LAW] 
Roderick Joyce QC Judge
Nature of application 
[1]
Mr Beck seeks leave to appeal to the High Court on a point or points of law The 9 November 2011 judgment of Judge D A Ongley whereby Mr Beck's appeal from his unsuccessful application for review of the question of whether the Corporation had discharged its obligation duly to investigate his claim, and act on an appropriate assessment, was dismissed, 
[2]
Section 162 of the Act provides that a party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with leave of the District Court, appeal to the High Court and it is in terms of that provision that Mr Beck makes his application. 
[3]
Subsequent to the filing of the application for leave to appeal the appellant and the respondent filed and exchanged submissions which process was complete by 24 January 2012. 
[4]
Shortly thereafter the file was referred to me for determination of the application. Having read Mr Beck's submissions I decided that his application could not be dealt with without the benefit of a transcript of the course of the appeal hearing, and why I made that decision will become apparent in due course. 
[5]
There was then some delay in the provision of the transcript which finally came to hand on 29 February 2012. 
Point of law (general parameters) 
[6]
The Corporation resisted Mr Beck's application on the basis that it did not identify any question of law that the High Court might consider on appeal. 
[7]
In Bryson v Three Foot Six Limited1
| X |Footnote: 1
[2005] 3 NZLR 721 (SC) at [21]-[28] 
the Supreme Court examined the scope of questions in law in cases where the complaint (amongst any others) was that the decision in question was not supported by the facts which (see later) seems in substance to be Mr Beck's principal concern. 
[8]
Counsel for the Corporation submitted that what the Supreme Court had said, as was relevant to the present context, might be summarised by saying that a question of law would arise in such a case where the decision maker had: 
misdirected itself as to the correct legal test; 
overlooked some relevant matter; 
taken account of some irrelevant matter; or 
reached a clearly untenable factual finding, 
I accept that as a fair summary, 
[9]
Counsel for the Corporation also noted that the Supreme Court has emphasised that “care must be taken to avoid allowing issues of fact to be dressed up as questions of law”.2
| X |Footnote: 2
 
[10]
I shall come back to the legal issues in due course but first, and so as to provide context, I set out the background to the case. 
Background 
[11]
It is convenient to do that by taking advantage of the chronology which counsel for the respondent provided as part of the submissions made for the Corporation. 
Date 
Event 
Bundle 
24/08/74 
Injury event: the Appellant had a motorbike accident. He suffered multiple injuries, including concussion, neck and back injuries and hip lacerations. 
 
14/02/91 
Appellant applies for cover, which is granted pursuant to the Accident Compensation Act 1982. 
27 — 28 
11/10/91 
ACC pays $1,400 lump sum compensation pursuant to the Accident Compensation Act 1972, s 119. 
29 
20/10/06 
Dr Shepherd confirms the Appellant has “chronic back pain”
30 
20/10/06 
Dr Shepherd confirms the Appellant has “a lung condition”
31 
07/02/07 
Funding request: Applicant requests funding for waterbed. 
 
25/09/07 
ACC asks Mr Welsh to assess the Appellant. 
36 
12/10/07 
Appellant refuses to attend assessment with Mr Welsh. 
37 
30/01/08 
Waterbed Decision #1: ACC declines to fund waterbed. There was insufficient medical information on which to base a decision. 
38 — 39 
09/05/08 
As part of a mediation agreement, the appellant agrees to be assessed by an appropriate orthopaedic specialist. Mr Beck's preferred specialist, Mr Hoffman, is unavailable. 
 
13/10/08 
ACC asks Mr Wickremesekera to assess the Appellant. In particular, Mr Wickremesekera is asked to consider if there is a causal link between the incapacity and the injury event. 
46 — 47 
11/12/08 
Mr Wickremesekera assesses the Appellant but is unable to answer the causation question. 
48 
16/12/08 
Mr Kanji assesses the Appellant, concluding that he had some impairment. 
49 — 52 
09/02/09 
ACC declines Appellant's application for an independent allowance (an application that ran in parallel to the request for a waterbed). 
 
13/02/09 
Appellant applies for review of independent allowance decision. 
 
22/09/09 
CT scan of the Appellant is conducted by Dr Andrew Taylor. 
57 — 58 
20/11/09 
Mr Wickremesekera reviews CT scan and reports to ACC. 
59 
10/03/10 
Dr Ames, the branch medical advisor, reviews the Appellant's clinical history. 
60 — 61 
26/03/10 
Review Decision #1: Reviewer Woodhouse quashes Waterbed Decision #1 on the grounds that ACC ought to have assessed the Appellant pursuant to s 84 of the 2001 Act. 
ACC is directed to ask Mr Wickremesekera “whether it is more likely than not, that [the Appellant] requires the provision of a waterbed, due to the back injury sustained in 1978.” 
62 — 77 
12/04/10 (et seq) 
In a series of emails, ACC and the Appellant (though his then counsel, Jonathon Miller) discuss the appropriate wording of the letter. 
84 
17/05/10 
Mr Wickremesekera responds that he is unable to comment on causation. 
87 
06/07/10 
ACC seeks further advice from Mr Hoffman who in the event is unavailable. 
 
07/07/10 
With the Appellant's counsel, it is decided to seek further advice from Mr Clearly or Mr Willis. 
 
19/07/10 
ACC seeks further advice from Mr Cleary, putting the same questions as had been put to Mr Wickremesekera. 
 
20/07/10 
Appellant has an appointment with Mr Cleary, but fails to attend. 
 
21/07/10 
A new appointment with Mr Cleary is arranged for 29/07/10. 
 
22/07/10 
By his counsel, the Appellant confirms he will attend the second appointment. 
 
28/07/10 
Appellant tells ACC he will not be attending the appointment. 
 
??? 
ACC seeks the opinion of branch medical advisor Dr Martin. 
89 — 92 
15/09/10 
Waterbed Decision #2: ACC again declines funding for the waterbed, principally on the strength of Dr Martin's assessment. 
93 
15/02/11 
Review Decision #2: Reviewer Blincoe examines Waterbed Decision #2. The application is dismissed because the appellant could not show: 
that he required the waterbed as a result of covered injuries; and 
that the waterbed came within the definition of ‘aids or appliances’ under the 2001 Act. 
94 — 107 
02/03/11 
Appellant appeals against Review Decision #1. 
 
03/03/11 
Appellant appeals against Review Decision #2. 
 
[12]
Mr Beck had appeared at a review hearing on 11 March 2010 where he was represented by Mr Jonathon Miller. The reviewer was seized of two applications: the first (116883) related to the Corporation's decision of 30 January 2008 regarding funding for a waterbed; and the second (142913) related to its decision of 9 February 2009 regarding an independence allowance, 
[13]
Following the review hearing, Mr Miller advised that Mr Beck sought to withdraw the application for review in relation to the independence allowance matter, and the reviewer declined jurisdiction accordingly. That, obviously enough, left for determination application 116883. 
[14]
For reasons thereafter recorded in his 26 March 2010 decision, the reviewer reached the conclusion that the Corporation should undertake an assessment of Mr Beck with respect to his request for funding of a waterbed. 
[15]
He accordingly quashed the Corporation's decision to decline the waterbed application and directed that a further opinion be obtained from Mr Wickremesekera, a special neurosurgeon, who had reported on Mr Beck on prior occasions. 
[16]
There was then some dispute concerning the terms of the request for a further opinion. It appears that Mr Miller, on behalf of Mr Beck, maintained that the causal issue3
| X |Footnote: 3
It would seem that Mr Beck himself has all along maintained that, having got cover, he is entitled to a waterbed. But that is to cast aside the issue of whether or not his medical condition, properly assessed, demonstrates the need for a waterbed and is a condition caused or contributed to by the injury cover. If, for example, the need was linked simply to spondylolisthesis existing quite apart from the accidental event, then no entitlement would arise. 
had been decided so that the only remaining issue was whether Mr Beck's back condition would benefit from the availability of a waterbed. 
[17]
As Judge Ongley recorded in his judgment that: 
“[23]
He [Mr Miller] requested that ACC not attempt to reintroduce the causal question and limit the enquiry to the question framed by Mr Woodhouse, namely whether it was more likely than not, that Mr Beck required the provision of a waterbed, due to the back injury sustained in 1978. ”
[18]
Of this Judge Ongley went on to observe: 
“[24]
The difficulty with that is that it contained a causal question: what back injury? and what resulting spinal condition required support that could be provided by a waterbed? In my view, the s 81 condition could not be readily answered, that is to say whether the waterbed was an aid ‘required as a direct consequence of the personal injury for which the claimant has cover’. To accept the entitlement otherwise, would have been to assume that the 1978 back injury had in fact substantially contributed to the spinal condition for which rehabilitation was required. Mr Beck was satisfied of that, but the Corporation was entitled to make a proper enquiry. It involved a medical question that included diagnosis and causation, and a therapeutic question whether rehabilitation could be promoted by a waterbed. ”
[19]
When appearing in person before Judge Ongley, Mr Beck had argued that the reviewer's direction to the Corporation, when read in the context of certain aspects of the transcript of the review hearing, amounted to a favourable to him decision on causation. 
[20]
The judge noted at [28] that it was Mr Beck's submission that: 
“Mr Woodhouse agreed (as did ACC) at the March 2010 Review, that I was covered by ACC for this claim. It was also accepted that ACC had all the necessary medical information they required from my previous claim approved in 1991 - which included an examination by Mr Worth neurosurgeon, X-rays, photographs, and from all the recent medical examinations for ACC Management to make a reasonable decision on the funding for a replacement medical support waterbed. Despite that acceptance, ACC subsequently set about to deliberately delay the progress. ”
[21]
Judge Ongley, after recording that there had been an exchange of emails between Mr Miller and the case manager on the contentious question of asking the specialist any question about causation, noted that eventually the manager wrote to Mr Wickremesekera asking these questions: 
1.
Is it more likely than not that Mr Beck requires the provision of a waterbed due to the back injury sustained in 1978? 
2.
Would any other type of orthopaedic bed be beneficial for Mr Beck's covered back injury? 
3.
Do you have any other comment you would like to make? 
[22]
As Judge Ongley also records, however, that specialist responded that as a neurosurgeon he was not able to comment on the questions and that Mr Beck would be better served by seeing an occupational physician or orthopaedic spinal surgeon. 
[23]
When the Corporation then sought to engage the services of Mr Jon Cleary, orthopaedic surgeon, Mr Beck declined to attend an appointment because, as he obviously appreciated, the assessment would require a physical examination and that, in his view, was not the type of opinion that had been directed by the reviewer. 
[24]
Then followed the Corporation's decision to (by reference to that refusal and in reliance on internal to the Corporation advice that waterbeds were not part of normal equipment in hospitals) decline the waterbed application. 
[25]
At this point I set out the last few paragraphs of Judge Ongley's judgment: 
“[33]
Mr Beck then lodged an appeal against that decision. That is the present appeal. I have referred to the earlier appeal because Mr Beck contends that the Corporation failed to follow the Reviewer's direction. I find that the Corporation acted properly in adding additional questions concerning any other type of orthopaedic bed or other comments, because a complete assessment under s 84(f) requires consideration of: 
(f)
the alternatives and options available for providing particular social rehabilitation so as to achieve the relevant rehabilitation outcome in the most cost effective way: 
[34]
This review was heard by Mr Blincoe on 18 January 2011. In his decision, the Reviewer stated: 
‘It is not clear from the medical evidence that Mr Beck currently has a condition related to his covered injury. Mr Wickremesekera says there are no specific disabling symptoms as a result of a covered injury, and in relation to the L4/5 retrolisthesis says only that it is likely to be “exacerbated” by trauma. ’”
[35]
I reach the same conclusion on my reading of the available evidence. There is nothing unusual in the Corporation's enquiry into the nature of the injury caused by an accident, the present consequences of the injury and the need for a waterbed or an alternative solution. The Reviewer found that Mr Beck had unreasonably failed to attend Mr Cleary and that the Corporation had reasonably acted on Mr Martin's opinion.Section 84(2)(a)authorises the Corporation to act on the opinion of its own assessors. There was no other competing evidence of a person qualified to offer an opinion on the matters that had to be decided. The letter from the appellant's GP in October 2006 was an introductory opinion, given without explanation and reasons. It could not realistically be regarded as sufficient evidence to support the claim. The appellant's own assertion was the only remaining evidence.4
| X |Footnote: 4
This passage appears to make plain that, on the hearing of the appeal, the judge has reached the same conclusions as had the reviewer, and for the same reasons. 
 
[36]
This enquiry involved a medical question and could not be decided on the claimant's own view of his needs, If that view was correct, then it might have been confirmed if the appellant had attended suitable specialist appointment. I think that this claim would have been resolved much more efficiently if the Corporation's first enquiry to Mr Wickremesekera had been more explicit. Mr Wickremesekera would then have been able to indicate immediately that he did not think he could provide an opinion, and a suitable specialist could have been identified. It was unfortunate that was not sorted out by the time of the first review. 
[37]
I find that the Corporation discharged its obligation to investigate the claim and eventually acted on an appropriate assessment. 
[38]
For those reasons the appeal is dismissed. ”
Mr Beck's submissions 
[26]
According to Mr Beck, and in the given circumstances, 11 in all points of law worthy of the grant of leave to appeal arise, he asserting in that respect the following: 
“1.
The unlawful Discrimination portrayed by Judge D. A. Ongley in his judgment towards the Appellant in the dismissal of the Appellants appeals - ACR 142111 & ACR 208/11. 
2.
Due process has not been addressed. Due process must take into account - 
a.
The NZ Human Bill of Rights Act 1990. 
b.
The Human Rights Act 1993. 
Inconsistency and intentional misconduct to the exclusion of the Appellants evidence is a Breach of Rights. Justice should not only appear to be done, but should be done. 
3.
Judge Ongley has stated only one number that is headed on his judgment for the sole claim of a waterbed - ACR 142/11. It appears he has ignored the conjoined claim number ACR 208/11 - pertaining to the Woodhouse Directive and the Appellants evidence of Need?. Judge Ongley has failed to take into account all of the Appellant's evidence5
| X |Footnote: 5
It is apparent that Judge Ongley has conflated, that is fused together the two appeals in his judgment and I deal with that point at [34] to [37] below. 
4.
Judge Ongley only refers to Reviewer Blincoe's unfairly biased decision at [34] which was based on an early opinion 2008 from Mr Wickremesekera before Mr Wickremesekera had reviewed the subsequent CT Scan 2009 - therefore Judge Ongley reinstates a deliberate misleading and Discriminating reference against the Appellant6
| X |Footnote: 6
Mr Wickremesekera's 20 November 2009 report refers to the 2009 CT scan. But it adds nothing that is in contradiction of what he had reported in 2008. 
. Judge Ongley acts as the Respondents advocate and failed to recognise that Blincoe's rigid predetermined decision did not conform to the State Services Code of Integrity and Conduct. 
5.
Procedural unfairness and prejudicial disregard for the Appellants evidence in representing himself to provide evidential Need from his GP. Judge Ongley failed to deliver a balance of fairness and discretion of key factual findings of all the main issues, and the legal equitable principals [sic] applied to all those issues. The Discrimination practiced against the Appellant is not authorised or required by the Act or Regulations. 
6.
The Appellants Need was established at the DRSL Review with Mr Woodhouse 11th March 2010 where the Respondent was Directed to seek a written opinion from the Specialist on one simple question and then make a decision on the waterbed — the Respondent failed to fully comply with either and the Appellant is not responsible for that. Judge Ongley clearly Discriminates against the Appellant in ignoring this additional ACR 208/11 evidence presented. 
7.
The Respondent had NOT made a decision after receiving Mr Wickremesekera's reply as was Directed by Mr Woodhouse. Judge Ongley Discriminates against the Appellant in overlooking this legal aspect and then again in upholding Blincoe's unfairly biased decision in that the Respondent had acted appropriately in requiring the Appellant to see yet another Third party Non-treating doctor Mr Cleary - when this also had not been Directed by Mr Woodhouse. 
8.
Judge Ongley stated that Respondent had generally acted appropriately in managing the Appellants claim - this is clearly a Discriminating opinion by Judge Ongley. The Corporation clearly had not discharge all of their legal obligations fairly and had failed to provide Mr Wickremesekera with all the necessary information required regarding the Appellants Need for a new waterbed so Mr Wickremesekera could provide an adequate and impartial opinion and medical report. Judge Ongley ends in contradicting himself in saying how unfortunate that the Respondent had Not acted properly in clarifying their initial enquiry to the specialist as if the Appellant was at Fault! 
9.
There are no critical redeeming features in Judge Ongley's judgment towards the Appellant - which is a clear outstanding and unbalanced sign of Discrimination. Judge Ongley has allowed his obvious personal prejudice towards the Appellants long hair and wearing jeans in his court to consciously sway his decision. 
10.
The Discriminating and contradictory judgment by Judge Ongley was bias towards the Respondent while ignoring the Appellants evidence of continuing Need and the whole decision takes advantage of the Appellants 1978 MVA head injury and slight intellectual impairment to representing himself adequately. 
11.
It was wrong for Judge Ongley Not to comply with the principals [sic] of Natural Justice and simply dismiss the Appellants evidence regarding his GP's continuing support for the waterbed as merely the Appellants opinion. ”
[27]
I am bound to say of all this (which really seemed also to identify Mr Beck's arguments) that: 
(a)
Mr Beck accuses the judge of pre-determination and bias but offers no evidence of that. 
(b)
Mr Beck speaks of such as a disregard of the principles of natural justice, and of the judgment being internally contradictory, but fails to identify any comprehensible example of either. 
(c)
A matter for considerable regret, Mr Beck takes an ad hominem rather than logical, and so potentially (or, at least, possibly) persuasive, approach; and 
(d)
In essence simply attacks with unhelpful epithets each finding of fact with which he disagrees. 
Submissions for Corporation 
[28]
Counsel for the Corporation offered the following in response: 
“Judge Ongley's decision 
8.
The central issue before Judge Ongley was whether the applicant required a waterbed as a direct consequence of his covered personal injury. 
9.
The Court focused on the question of causation; finding that there was insufficient evidence to link the applicant's covered injury to his present need for a waterbed. 
Appellant's submissions 
10.
The applicant's principal arguments appear to be that: 
10.1
Judge Ongley failed to place sufficient weight of the evidence that favoured the applicant; and 
10.2
fresh evidence (a letter from his GP) supports the applicant's case. ”
[The Court observes that, in these terms and in the best traditions of the bar, counsel sought to identify in the clearest possible light what Mr Beck (with the benefit of ongoing advice) might have argued.] 
“11.
The applicant also makes inappropriate allegations of judicial bias. 
Analysis 
12.
It is submitted that the applicant has not identified any question of law; much less one that is capable of bona fide argument. 
Weight of evidence 
13.
Questions of weight are for the fact finding court. It is for that court to weigh the relevant facts in light of the applicable law. Questions of weight do not give rise to a question of law. 
Fresh evidence 
14.
Any appeal ought to be heard on the record. In any event, Dr Shepherd's letter does not speak to the central issue of causation; simply repeats materials that were before, and considered by, the Court. 
Bias 
15.
ACC respectfully submits that the applicant has not identified any foundation for an allegation of judicial bias. 
Conclusion 
16.
In conclusion, to be granted leave the applicant must identify a question of law that is capable of bona fide argument. 
17.
ACC submits that no such question of law has been identified. The application for leave must be dismissed. ”
Discussion 
[29]
I have already pointed to the complete absence of any tenable justification for the allegations of pre-determination and bias. 
[30]
In none of what Mr Beck has variously put before the Court (which, in its completeness goes well beyond those of his materials that I have specifically identified)7
| X |Footnote: 7
An example is his 24 January 2012 set of further submissions which, along with everything else he had lodged, I read. 
can I find any possible foundation for arguments of: 
(a)
judicial self-misdirection; or 
(b)
oversight in respect of any material matters or evidence; or 
(c)
the bringing into account of irrelevant matters; or at the fundamental level 
(d)
the reach of a clearly untenable finding. 
[31]
There is no room on an application of this kind for the introduction of further factual evidence and in any event the 29 November 2011 letter from Mr Beck's general practitioner that he was anxious to press on this Court simply rehearsed the specialist's comments on the CT scan and conveyed that his doctor “supports” him in his request. 
[32]
All the materials considered, there is no sign to be found in them of any point of law warranting reference to the High Court. What Mr Beck really seeks is the taking of a different view of the facts: in other words, he wants a retrial of his case. 
[33]
I come back to the transcript issue. My reading of the transcript of the hearing before Judge Ongley reveals that Mr Beck was given a full and fair opportunity to air and argue his case. And it is no point of law for a litigant simply to say that he or she is unhappy at the outcome. 
[34]
To come back to the conflating of two appeals issue, I cannot see that as giving rise to any useful point. 
[35]
Appeal 142/11 was about the waterbed justification issue and a complaint about the entirely unexceptionable terms of an inquiry letter to the specialist. 
[36]
Appeal 208/11 was about access to an electronic transcript of a review hearing, an issue left moot given the right of appeal exercised before Judge Ongley was by way of a fresh hearing. 
[37]
The issue that mattered — that of whether the Corporation was obliged to fund a waterbed — was the issue requiring to be determined by the judge. And he did determine it, 
Result 
[38]
The application for leave to appeal on points of law is dismissed. 


[2005] 3 NZLR 721 (SC) at [21]-[28] 
It would seem that Mr Beck himself has all along maintained that, having got cover, he is entitled to a waterbed. But that is to cast aside the issue of whether or not his medical condition, properly assessed, demonstrates the need for a waterbed and is a condition caused or contributed to by the injury cover. If, for example, the need was linked simply to spondylolisthesis existing quite apart from the accidental event, then no entitlement would arise. 
This passage appears to make plain that, on the hearing of the appeal, the judge has reached the same conclusions as had the reviewer, and for the same reasons. 
It is apparent that Judge Ongley has conflated, that is fused together the two appeals in his judgment and I deal with that point at [34] to [37] below. 
Mr Wickremesekera's 20 November 2009 report refers to the 2009 CT scan. But it adds nothing that is in contradiction of what he had reported in 2008. 
An example is his 24 January 2012 set of further submissions which, along with everything else he had lodged, I read. 

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