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Accident Compensation Cases

Spencer v Wellington District Court (HC, 05/10/07)

Judgment Text

Simon France J
On 10 July 2002 the second defendant, through its agent, suspended Mr Spencer's entitlements to compensation. Mr Spencer sought a review of the decision. The review was declined on 22 November 2002. Mr Spencer then appealed to the District Court. A reserved decision dated 22 April 2004 dismissed the appeal. 
In May 2004 Mr Spencer sought leave from the District Court to appeal the District Court decision. The application for leave was filed out of time by around a week. The application was declined on the basis that there was no power to extend the time for filing an application for leave to appeal. Mr Spencer sought special leave from the High Court, but abandoned it before it was heard, presumably in recognition that the special leave power could not cure the defect in the application for leave to appeal. Instead these judicial review proceedings were issued, challenging the 2004 reserved decision of the District Court. 
Preliminary issue 
A preliminary issue which arises is whether it is open to the plaintiff to bring these review proceedings. The respondent submits the proceedings are barred by virtue of s 133(5) of the Injury Prevention Rehabilitation and Compensation Act 2001. Mr Barnett, in his submissions, first addressed the review on its merits before relying on the provision. That is understandable in that it is preferable for the defendant to succeed on the merits. However, I consider it is proper to first address the issue of whether there is a statutory bar. 
Section 133(5) provides: 
“133 Effect of review or appeal on decisions 
If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. ”
The starting point is Ramsay v Wellington District Court [2001] NZAR 136 (CA). That case considered the predecessor to s 133(5). The Court held that the presumption of interpretation that limits the scope of privative clauses did not apply with full force where the provision is one such as s 133(5) which does not purport to exclude the jurisdiction of the High Court, but dictates the form of the review. The Court observed (at paragraph [33]): 
In the case of s 134(4) the drafter has been careful to confine the scope of the statutory exclusion of the courts to matters where the person has a right to invoke the statutory process of review and appeal. Accordingly, if the perceived error or invalidity cannot be fitted within that procedure, then the exclusion of other remedies will not apply. This is clear on the language of s 134 and the presumption of interpretation does not arise for consideration. It will accordingly be sufficient, in the present case, for the appellant to maintain its judicial review proceeding if he can show that the grounds on which he relies in seeking judicial review remedies could not be determined under the statutory process. But if they are amenable to decision under the statutory scheme, the effect of s 134(4) is that the Court is barred from granting relief in the separate judicial review proceedings. ”
Ramsay is binding upon the Court. The issue would therefore appear to be whether the challenges brought in these proceedings could have been brought on appeal. However, it is appropriate to first address Mr McKenzie's submissions on why s 133(5) did not operate as a bar. 
Mr McKenzie submits that, narrowly interpreted in accordance with the statutory presumption discussed in Ramsay, and in light of s 27 of the New Zealand Bill of Rights Act 1990, s 133(5) does not apply to this case. That is because it is applicable only where the person has a “right of appeal”. Mr Spencer cannot be said to have a right of appeal because there was no capacity in the Court to extend the time limit, and consider his application on its merits. That being so, s 133(5) should be narrowly construed so as not to apply to a situation where someone is unable to appeal for a procedural reason — eg non compliance with a time limit. In reply submissions Mr McKenzie summarised his position as being that an alternative remedy to appeal is available if, at the time of seeking it, an appeal is not reasonably available or has been denied to the applicant for procedural reasons. It was submitted that an application of the approach set out by the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, at paragraphs [17] — [20] would lead to an appropriately narrow reading of s 133(5). Mr McKenzie submitted that the first three steps of the Moonen test were not affected by Hansen v R [2007] 3 NZLR 1. Whilst I doubt that is so, it is not necessary for me to consider it as I regard Ramsay as plainly dictating the inquiry I am obliged to make. 
It is necessary to consider the facts of Ramsay. In that case Mr Ramsay had, like Mr Spencer, appealed to the District Court. When unsuccessful, he sought leave from the District Court to appeal to the High Court, just as Mr Spencer did. However, unlike Mr Spencer, Mr Ramsay applied in time so the Court had jurisdiction to consider the application. 
The application was declined, and Mr Ramsay then sought special leave from the High Court, which likewise declined leave. Mr Ramsay then initiated the judicial review proceedings seeking to challenge the District Court decision concerning which leave to appeal had been declined. Against that background the Court of Appeal identified the true effect of the privative provision. 
The effect of Mr McKenzie's submission in this case is that Mr Spencer would be better off than Mr Ramsay by virtue of not having sought leave to appeal in a timely way. Because Mr Spencer's application was thereby procedurally timebarred, s 133(5) is said to have no application, whereas it applied to Mr Ramsay because he complied with the statute and applied within time. 
That cannot be a correct outcome, and there is nothing in Ramsay that would support the proposition. There is no suggestion that one who failed to seek leave could thereby avoid the limitations contained in s 133(5). It was not expressly submitted to me that Ramsay was wrong, but that in reality is the argument the plaintiff must make (in another forum). In this Court it is necessary to consider whether the challenges brought by the plaintiff could have been brought under the appeal provisions of the Act. If they could, s 133(5) prevents the same challenges being brought by way of judicial review. 
What are the challenges? 
The essence of Mr Spencer's case is that the District Court has wrongly used, or not used, the evidence before it. As often happens in these cases, there are several specialist assessments. The plaintiff's grievance focuses on two of those reports: 
First, it is said that the District Court gave no consideration or apparent weight to a report by Mr Peter Grayson. That report had been prepared at Mr Spencer's request for the purposes of the review of ACC's initial decision to suspend his entitlements; 
Second, the District Court wrongly used the evidence of a second specialist, Mr Peter Welsh. Mr Welsh had provided an initial report which generally was not favourable to the plaintiff's case. However, subsequent to Mr Grayson's favourable report, Mr Welsh was asked to look again at the issue. It is the plaintiff's case that Mr Welsh's second report, where he acknowledges a modification of an aspect of his views as a result of Mr Grayson's report, is particularly helpful to the plaintiff. However, the District Court referred only to Mr Welsh's initial report. 
Against that background, the judicial review proceedings are advanced under several headings. 
The first challenge is error of law; it is said that the District Court applied an incorrect legal test as to what link there must be between the original injury suffered by Mr Spencer and his on-going condition. The plaintiff did not seek to argue that this ground of review could not have been advanced on appeal. 
The second challenge is failing to take account of relevant considerations, namely the relevant available medical evidence. The third challenge is unreasonableness, on the basis that no tribunal properly directing itself to the evidence, could have reached the outcome. The fourth challenge is substantive unfairness, it being argued the outcome is not substantively forgiven the evidence. 
In Ramsay the Court observed (at paragraph [35]): 
“While the ground might be categorised as irrationality, it is in essence that the facts found were such that no body citing judicially and correctly understanding the law could have reached the determination under appeal. If that were established there would be an error of law of the type identified by Lord Radcliffe in Edwards v Bairstow [1956] AC 14, 36 requiring intervention of the Court. The question is however one which could readily be raised by application to the High Court for leave to appeal on a question of law under s 165. That is sufficient for s 134(4) to preclude the appellant from seeking judicial review remedies. ”
Mr Barnett referred me to a helpful encapsulation of what is a question of law given by Doogue J in Impact Manufacturing Limited v ARCIC AP 266/00, Wellington, 6 July 2001 (at paragraphs [5] — [9]): 
“What is point of law? 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards v Bairstow [1955] 3 A11 ER 48, 57; P & O Services (NZ) Ltd v ARCIC
Even where, as in this case, an appeal is limited to questions of law, a mixed question of law and fact is assailable as a matter of law: CIR v Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6. 
It is well settled that a decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow, 57. 
The Court of Appeal in Lang v Eagle Airways Ltd [1996] 1 ERNZ 574, 576, cited Edwards v Bairstow in support of the following statement: 
‘If those conclusions were not reasonably open to the Judge then this Court can rule, as a matter of law, that they are unsustainable and should be set aside …  ’”
Whether or not particular evidence is relevant to a particular issue is a question of law: Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641, 651-652. ”
In Ellwood v ACC CIV 2005-485-536 Wellington, 18 December 2006, Mallon J referred to several question of law cases in the ACC area. The context in all those cases was the issue of causation; the point for present purposes is that these decisions had, on appeal, reviewed the issue of whether the causal nexus between accident and on-going injury (the point in dispute in Mr Spencer's situation) was established on the evidence. As Mr Barnett submitted, those cases leave no doubt that Mr Spencer's challenge could have been brought via the appeal options. 
In my view the present case is indistinguishable from Ramsay. All the challenges have the same focus, namely that the decision of the District Court is sufficiently out of tune with the evidence before it that it can be brought within the concept of unreasonableness or irrationality. Ramsay makes plain that such an argument can be advanced under the appeal provisions of the Act. The extract from Impact Manufacturing and the cases discussed in Ellwood, reinforce the breadth given to the appeal provision. 
The challenges that the plaintiff wishes to make against the decision of the District Court could all have been accommodated under the appeal provisions. They are all based squarely on the record and do not need extrinsic evidence as might be required in relation to wider process challenges, or as Mr Barnett suggested a challenge to say the independence of the ACC reviewer. Section 133(5) is a bar to the proceedings. 
The merits? 
I am reluctant to engage in an analysis of the substance of the challenges because I consider the case quite clearly falls within Ramsay and the review proceedings cannot continue. In such circumstances to analyse the substantive claims is to, in effect, ignore the bar. 
However, I heard detailed and skilled arguments on the merits. For the sake of the plaintiff I consider it appropriate to indicate in the broadest terms my conclusions on the merits, whilst recognising this aspect of the judgment lacks the degree of analysis that would be appropriate if I were formally giving a ruling on this aspect. 
The general context is that Mr Spencer was a printer, a job that involved considerable heavy lifting. It is accepted that on a particular day in September 1985 he suffered a strain injury to his back. The evidence also establishes that the injury triggered dormant pre-existing conditions in his back — spondylolisis and spondylolisthesis. The factual question in issue was whether the original injury remained a cause of Mr Spencer's significant present day incapacity. 
In general terms I must acknowledge that I did not read the medical reports in the way the plaintiff urged, but rather saw the conclusion the reports supported as being exactly that which the District Court reached. In particular Mr Welsh's second report does not move away from his essential thesis, namely that whilst the accident triggered the onset of a dormant disease, Mr Spencer's condition nearly 20 years on is now explicable not by the injury but only by the disease. 
The District Court Judge held that an initial “but for” link was not sufficient; the present condition had to be able to be linked to some extent to the original accident. Mr Grayson's report goes no further than affirming the “but for” link. It does not provide support for the idea that the injury is presently a contributing factor, other than in the original “but for” sense. Accordingly, the District Court's conclusion seemed the correct one on the evidence. 
Paragraph 29 of the District Court's decision identifies the issue as being whether there is any on-going injury caused by the accident or whether the problems are now sourced only in the degenerative condition. That seems to be exactly the test Mr McKenzie urges as being the correct one. The Court concludes the present conditions are not attributable to any injury, and that is a conclusion that is not only available on the evidence but in my view is the consistent theme of the evidence. 
The judicial review application is declined on the basis that it is barred by s 133(5) of the Injury Prevention Rehabilitation and Compensation Act 2001. 

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