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Accident Compensation Cases

Elliston v Accident Compensation Corporation (DC, 29/05/13)

Judgment Text

Judge D A Ongley
This is an appeal against a review decision which found that Mrs Elliston's application for review did not specify any decision of the Corporation that was open to review. The review was therefore dismissed for lack of jurisdiction. 
The relevant injuries were (a) a back injury suffered in a fall from a chair in 1988, and (b) a back injury suffered when lifting a trailer in 1995. Mrs Elliston has said for many years that a Dr Moynagh attempted to treat her back injury in 1998 by severing spinal nerves and that she has suffered pain and disability ever since. She says that the trailer accident happened because of the resulting weakness in her back. 
The following is a shortened summary of the grounds for review that Mrs Elliston set out in her review application: 
A High Court Judge stated “This is your right to compensation”
the Medical Council onf New Zealand stated on 1 March 2011 that the ACC should review its decision. 
Doctors have provided reports (viewed by the Medical Council) of an improper operation which caused serious injuries. 
Information has come to hand concerning medical misadventure causing major injury leading to a further injury in 1995; obtaining the information was difficult because there was no documentation of the operation. 
A right still exists for payment of compensation for the 1988 injury. 
It can be seen immediately that these grounds do not refer to a decision of the Corporation made within three months before the application for review. Section 135 of the Act requires any review application to be made within three months of the Corporation's decision. 
In fact, the grounds in the review application referred to matters that had been decided by the Corporation some years before, and had been taken to review and appeal. Reviewer Mr J W Haines summarised some of the history and said: 
“Mrs Elliston's application did not identify any decision in respect of which it was made. It appears to seek compensation for the medical misadventure claim ACC and the courts had already considered and rejected. As these matters have previously been litigated, I agree with ACC that they cannot be reconsidered under the principle of issue Estoppel. Such a position has been taken, not only in Mrs Elliston's case, but in the other decisions referred to by ACC. Mrs Elliston's application for review cannot be considered afresh by a reviewer — irrespective of any advice received by her. Accordingly, I dismiss the application for review. ”
The short answer in this appeal is that the Reviewer was correct on both points. In the first place there was no recently issued decision by the Corporation to take to review. The second point was that Mrs Elliston's grounds or arguments had already been finally decided in other reviews and appeals. 
There is simply a lack of jurisdiction. Even if Mrs Elliston had a perfectly good argument, the Reviewer would have had no jurisdiction to hear and decide it. If there is new evidence that justifies a new decision by the Corporation, the Corporation would first have to consider the evidence and issue a primary decision. That could then be taken to review if necessary. A claimant cannot take an application for cover or entitlement straight to a review hearing. 
At the hearing of the appeal, Ms Becroft for the respondent helpfully provided written submissions explaining the background. 
There appears to be no medical evidence confirming an injury caused by a Dr Moynagh in 1988. The appellant and her husband have given accounts of what happened. There is no radiology or clinical evidence of the cutting of nerves in the appellant's back, which is the basis for a treatment injury claim. 
Actual incapacity appears to have occurred after the 1995 accident. The Corporation declined to pay weekly compensation on the ground that the appellant was not an earner immediately before incapacity. The appellant took that decision to review. Her review was unsuccessful and she appealed to the District Court. That appeal was dismissed by His Honour Judge Beattie in November 2001. It was argued on the basis that she had suffered relevant injuries in 1988 and 1995. The appeal was dismissed on the ground that the appellant had not shown that she suffered incapacity at any time when she was an earner. 
Mrs Elliston applied for leave to appeal. She was refused leave in the District Court and in the High Court. 
In 2001 she applied for cover for a treatment injury suffered in 1988. Cover was declined and she did not apply to review that decision. 
Mrs Elliston raised the question of treatment injury again by applying for weekly compensation based on incapacity caused by all injuries including the back injury (for which she had been declined cover). The application was declined and a review was unsuccessful. 
An appeal from that review was heard by His Honour Judge Cadenhead. In a judgment on 30 September 2003 he recorded that the appellant had made an application on 1 November 2002 for weekly compensation for loss of earnings caused by all of her injuries. The Judge found that weekly compensation for incapacity based on the 1995 trailer injury had already been decided in the earlier appeal. 
Judge Cadenhead also found that the question of a 1988 treatment injury had also been argued in the earlier appeal, relying on substantially the same evidence. However he considered the treatment injury claim and said: 
What has to be proved is the failure of a doctor to observe a standard of care and skill reasonably expected in the circumstances. The statute provides essentially that a doctor is not an insurer concerning desired results, and that what must be taken into account is that with hindsight reasoning a subsequent event might have produced a different decision or a better result: that type of reasoning may not necessarily lead to a finding of medical error. Again, it is important in this respect to judge this case upon the standards of care observed in 1988 and not the present day. The professional responsibility, while based upon reasonable foresight is arrived at by objectively considering what was a foreseeable consequence in 1988, not at the date of the complaint. ”
The overriding problem was that there was no reliable medical evidence of the procedure that had been carried out in 1988, and of course no evidence whether it was a procedure that did not meet a standard of care and skill accepted by responsible medical practitioners at that time. The Judge also said: 
In the present appeal the appellant substantially relied upon the same medical reports that she presented to the earlier review hearing heard in 2001. I note that before the first primary decision on the issue of medical misadventure that the appellant would not entertain the request of the respondent to arrange an appointment with a nominated orthopaedic specialist. Rather, the appellant took the view that the medical evidence she had tendered were sufficient to conclude the issue in her favour. It was not open to the appellant to unilaterally determine for the respondent what medical advice they should act upon. This is particularly the case, like here, where the accident occurred some years earlier from when the claim to cover was made. I cannot see on the materials and arguments that were presented to me by the appellant that there were any differing circumstances from those presented to the review hearing that resulted in a decision dated 7 August 2001 declining her claim. For these reasons the principle of issue estoppel applies and it is really not open to the appellant to once again relitigate the same ground. ”
Mrs Elliston sought leave to appeal that decision. She was refused leave in the District Court, in the High Court and in the Court of Appeal. 
The only new evidence that Mrs Elliston put before the Reviewer in June 2011 was a letter from a general practitioner, Dr Grant Cavitt who saw her for the first time in April 2011. That letter did not deal with a question of medical misadventure in 1988. The material before the Court in this appeal does not emcompass any new evidence. 
But it needs to be made quite clear that the foregoing history is not a live issue in this appeal. The appeal must be dismissed on jurisdictional grounds. There was no jurisdiction for the Reviewer to hear a review, and there is no jurisdiction for the District Court to hear an appeal. 
The appeal is therefore dismissed. 

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