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Accident Compensation Cases

JH v Accident Compensation Corporation (DC, 04/09/13)

Judgment Text

Judge Roderick Joyce QC
This was an application for leave to appeal on a question of law the 11 March 2013 judgment of Judge Ongley concerning the Corporation's decision of 20 December 2011 holding that the applicant's entitlement to lump sum compensation was to be assessed by reference to a 24% WPI, a decision that had been upheld on review on 16 May 2012. 
To rehearse Judge Ongley's words, the applicant had been the victim of a “shocking error”. Transposition of unrelated to her specimens in a laboratory had led to the applicant being wrongly diagnosed as having squamous cell carcinoma of her jaw. She had consequently undergone extensive, supposedly remedial, and then reconstructive surgery. 
The awful fact was that a later review of the histology revealed that the originally recorded tumour concerned another patient altogether. Little wonder then that the applicant should seek to explore every conceivable remedy or redress. 
It was most certainly not in issue that, as Judge Ongley described it: 
“The appellant suffered a treatment injury beginning with an injury in a laboratory test and progressing to serious and ongoing post operative deterioration of her jaw and the site of bone removal on her left leg. ”
All this notwithstanding, it is apparent from Judge Ongley's judgment that there was doubt that (a) the WPI assessment had been properly carried out and (b) that the 24% finding was in accord with the relevant guidelines, In fact those matters were not in dispute. 
At review the submission had been that: 
“ACC's decision maker could take into account the aggravating features of the applicant's case: see Couch v Attorney General [2010] NZSC 27Has Litigation History which is not known to be negative[Blue]  (at paragraph [98]). The aggravating circumstances of this case made them a relevant consideration. The decision maker has not taken into account that relevant consideration. ”
Rehearsal of that submission led Judge Ongley to remark that: 
It can safely be assumed that an appropriate sum for compensation for non economic loss resulting from the appellant's permanent impairment would be far in excess of an award in the region of $11,0001
| X |Footnote: 1
The lump sum award calculation referable to the 24% assessment and controlled by the 2001 Act and the next mentioned in [7] regulations had produced an amount (not itself in dispute either) of $10,889,59. 
but lump sum compensation under the Act is limited by Parliament to awards based on whole person impairment assessed under clause 59 of Schedule 1 of the Act and paid to a claimant under clause 60. Assessments result in a percentage of WPI which is applied to a table in the Accident Compensation (Lump Sum and Independence Allowance) Regulations 2002. There is no provision in the Act for the Corporation to pay any sum in excess of the regulations, apart from other heads of compensation such as rehabilitation, treatment and compensation for lost earnings. ”
The judge noted as more than surprising certain of the grounds of appeal from the review decision, especially the novel contentions that: 
Couch v AG para [98] stated that increased compensation for aggravation was available from ACC. 
ACC should have followed Couch v AG and increased the appellant's compensation, then sued the other parties to the wrong if deemed appropriate. ”
Later in his judgment Judge Ongley alluded to s 68 of the 2001 Act which broadly identifies the parameters of entitlements under the Act. 
Section 68 encompasses (in its subs (3)) limited areas of discretion that are restricted to certain then specified provisions of the legislation. But, as Judge Ongley pointed out, the lump sum compensation provisions and formulae are not included within any of those areas of discretion. 
So in the absence of any contrary provision elsewhere in the Act (and none has been drawn to attention) the position must be, as indeed the Judge found, that the Corporation cannot provide lump sum compensation in excess of that already here determined. 
As understood by the judge at the appeal hearing, the case for the applicant came down to this: 
Mr Ord then arrived at the submission that the Act does not oust equitable jurisdiction. He advanced the negative submissions that there is no case that says it cannot be applied, and that the Act is completely silent, He submitted that the District Court had an equitable jurisdiction and that the appellant sought either a declaration or an order for restitution. 
The ground for an order for restitution usually depends on unjust enrichment. The limited question here is whether an equitable remedy might be available. Mr Barnett for the Corporation submitted that the power of the Corporation to pay compensation is confined by the legislation and that there is no gateway for other compensation. 
Mr Barnett further submitted that the Corporation made no primary decision about equitable compensation. The decision that was taken to review is a decision under the Act to pay lump sum compensation. 
The Court has a general equitable jurisdiction under s 34 of the District Courts Act, but the jurisdiction in an appeal from a review decision is conferred by the Accident Compensation Act. Under s 150 of the Accident Compensation Act, the District Courts Rules apply, but that provision does not confer jurisdiction. ”
In my respectful view both Mr Barnett's submissions as thus summarised and Judge Ongley's observations on the jurisdictional issue cannot be faulted, not even in faintly arguable terms. 
Nor either, and as I see it, can there be any useful quibble with the consequential observations of the Judge that: 
In appeals from reviews under the Accident Compensation Act, the Court is restricted to deciding the correctness or otherwise of decisions made by the Corporation. No additional jurisdiction is conferred by that Act or by the District Courts Act 1947. 
Mr Ord's plea to apply the observations of Tipping J in para [98] of the Couch judgment is misconceived. The appellant's grounds for appeal have no logic in law. The District Court is itself is a creature of statute and cannot arrogate jurisdiction that is not conferred by legislation. Mr Barnett's submission is correct but the point does not even arise on an appeal against a lump sum decision by the Corporation. Nor can it possibly be said that the Corporation failed to make a decision addressing a claim for compensation beyond clause 60 payment of lump sum compensation. ”
It was upon that basis that the appeal is dismissed. 
Mr Ord's submissions in support of the current application make, with respect, quite extraordinary reading. 
As best I can understand it, counsel appears to propose that even be it that there is nothing that this Court could or should have done as might better assist the applicant, the High Court suffers no such restriction and could (and should) in its inherent jurisdiction resort to “equity”
It appears to be contended that s 162 can not only be a pathway to examination in the High Court of whether this Court has got the law wrong in some material respect, but also a gateway to an untrammelled by the metes and bounds of the Accident Act consideration of what might in fact provide the applicant within a remedy commensurate, in all fairness, with the damage she has sustained. 
Mr Ord concedes in his submissions that s 317 of the Accident Compensation Act 2001 stands in the way of proceedings being brought independently of it for damages arising directly or indirectly out of personal injury covered by the Act and of course, in this case, there was indeed personal injury so covered. 
But, undeterred by that provision and its patent ramifications, counsel argues that: 
However the matter has now arrived at the High Court with its inherent jurisdiction and ability to interpret the law in order to assess such restrictedness [sic] and, possibly, to confirm or alter it. ”
And that contention is then apparently tied to these: 
In this New Zealand case, the outcome for the applicant so far has been inevitable and understandable for the District Court, which is a creature of statute. 
But the equitable jurisdiction is (or was) a bastion of the High Court, and it is submitted that any equitable jurisdiction apportioned the District Court comes not from statute or regulation but from the High Court. 
That submission is supported by the observations the High Court — on review at least — can find an error of law, and that District Courts must follow High Court decisions. ”
Here, I confess, the argument reaches a point where I simply cannot relate it to any recognised principle or provision of law. It might also be noted that s 99 of the Judicature Act most certainly does not operate to abrogate the law of the land as laid down by Parliament in, in this case, the Accident Compensation Act 2001. 
The same kinds of problems arise with the further submissions filed on behalf of the applicant following receipt of the submissions lodged for the Corporation. 
In these, counsel seeks to take the Court on a journey across a range of United States jurisprudence before coming ashore with these propositions: 
It is submitted that on the Glanding analysis, the equitable jurisdiction of a state remains independent of statute and is whatever a responsible higher court interprets it to be under the constitution — written or unwritten, both in equitable terms and in terms of the High Court's interpreting the law. 
It is for the High Court to decide its limits. Only the High Court is capable of deciding whether equity applies in this case. The application to appeal on a question of law should be allowed. ”
Then finally follows this: 
If the Court (obviously here meaning the High Court) accepts there is a constitutional basis for this case to be heard in its equitable jurisdiction, a writ of mandamus would be sought on appeal enabling an award from the defendant to the applicant apart from her statutory entitlements. ”
With respect, that final reference to “statutory entitlements” surely brings us back to the indisputable points that (a) the Corporation (the only other party to this appeal) is also but a creature of statute and (b) there is no statutory remedy available as might enhance the WPI already made — at least not unless, at least 12 months on from the assessment in question, there is evidence of deterioration. 
This application does not raise any question of law pertinent in any way to the question of the exercise by this Court of its appellate function under the Accident Compensation Act 2001. 
The idea that, were leave to be given, the High Court could somehow rehear (or perhaps instruct this Court to rehear) the whole case in terms including a consideration of remedies going beyond the boundaries of the Accident Compensation Act 2001 is one involving a monumental misconception. 
All else aside, what appears to have been quite lost to sight - when, as on occasion here, the applicant has made reference to Couch - is that it was not a case arising from the operation of the Accident Compensation Act 2001 as between, as here, a party with cover and the Corporation itself. 
Thus the application is dismissed. 

The lump sum award calculation referable to the 24% assessment and controlled by the 2001 Act and the next mentioned in [7] regulations had produced an amount (not itself in dispute either) of $10,889,59. 

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