Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

O'Neill v Accident Compensation Corporation (No 4) (HC, 01/04/11)

Judgment Text

JUDGMENT (NO. 4) OF HEATH J 
Heath J
The application 
[1]
The Accident Compensation Corporation (the Corporation) seeks leave to appeal to the Court of Appeal against a judgment I gave on 22 December 2010, in favour of Mr O'Neill. The parties have agreed that I may determine the application on the papers. 
Background 
[2]
On 22 December 2010, I allowed Mr O'Neill's appeal against the District Court's dismissal of a challenge he had made to the refusal of cover. I held that Mr O'Neill was entitled to a “deemed decision” in his favour, under s 146 of the Injury Prevention Rehabilitation and Compensation Act 2001 (the Act).1
| X |Footnote: 1
O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010. The Act has been renamed the Accident Compensation Act 2001. 
 
[3]
The Corporation seeks leave to appeal to the Court of Appeal. Jurisdiction is conferred by s 163(1) of the Act: 
“163 Appeal to Court of Appeal on question of law 
(1)
A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only. 
 ”
[4]
Mr Corkill QC, for the Corporation, submits that my judgment focussed on the correct interpretation to be given to s 146(1) of the Act and, therefore, raised a question of law fit to be considered by the Court of Appeal. 
[5]
Mr Corkill has referred me to Knight v Accident Compensation Corporation2
| X |Footnote: 2
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 per Randerson J
as an illustration of the exercise of the s 163(1) jurisdiction. In stating the appropriate test, Randerson J took the view that the principles applicable to an application for leave to bring a second appeal under s 67 of the Judicature Act 1908 should apply.3
| X |Footnote: 3
Ibid, at para [18]. 
With respect, I agree. 
[6]
Those principles are set out in authorities such as Waller v Hider.4
| X |Footnote: 4
Waller v Hider [1998] 1 NZLR 412 (CA)Has Litigation History which is not known to be negative[Blue] 
Delivering the judgment of the Court of Appeal in that case, Blanchard J said:5
| X |Footnote: 5
Ibid, at 413. 
 
“ … the test is well established. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherfurd v Waite; Cuff v Broadlands Finance Ltd. In the latter case the Court also remarked that in the end the guiding principle must be the requirements of justice. (citations omitted) ”
Should leave to appeal be granted? 
[7]
To my knowledge, my judgment of 22 December 2010 is the first occasion on which this Court has pronounced on the “deemed decision” provision contained in s 146 of the Act. The issue was narrow: it was whether s 146(1), in its reference to “the date for the hearing” meant a date of hearing fixed for the purpose of considering the merits of the review, as opposed to one convened to deal solely with a jurisdictional point.6
| X |Footnote: 6
O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010 at para [24]. 
After analysing the provision, I held that the former was the appropriate interpretation, meaning that Mr O'Neill was successful in his appeal. 
[8]
While my decision was reached on “a very narrow ground”, I accept that the contrary argument is seriously arguable. Because it arises in the context of dispute resolution provisions contained in Part 5 of the Act, which have the potential to affect every New Zealander who suffers personal injury by accident, the issue of law must be regarded as of sufficient public importance to outweigh the cost and delay of a further appeal. 
[9]
In saying that, I am conscious that Mr O'Neill's private rights to enforce a judgment in his favour are significant. He has spent a significant amount of time challenging various decisions made in the course of consideration of his claim for compensation. He became embroiled, through no fault of his own, in a procedural quagmire that, as I said in an earlier judgment, did “not reflect well on the administration of justice in this country”.7
| X |Footnote: 7
O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 14 December 2009 at para [3]. 
The time it has taken to get Mr O'Neill's claim to this stage (it was first formulated in November 2002) is excessively long. 
[10]
Nevertheless, there is a public interest of high significance in ensuring that the deemed decision provision of the Act is correctly interpreted and applied to all cases with which the Corporation deals. In those circumstances, I am satisfied that leave to appeal should be granted, notwithstanding the considerable weight that would otherwise be given to the factors that weigh in favour of Mr O'Neill's position. 
[11]
An appeal under s 163(1) must be brought by way of case stated. Mr Corkill has provided a draft case in the form set out in the schedule to this judgment. I consider that the draft case stated adequately captures relevant facts to be considered by the Court of Appeal and the issue of law. 
Result 
[12]
The application for leave to appeal is granted. The appeal and case stated shall be filed in the Court of Appeal and served on Mr O'Neill on or before 8 April 2011. 
[13]
Thereafter, the Court of Appeal (Civil) Rules apply. I would, however, encourage the Corporation to ready the appeal for hearing as soon as possible. Some expedition is appropriate, in the circumstances I have described. 
[14]
The Registrar shall forward a signed copy of the case stated to both Mr Corkill and to Mr O'Neill. That is the version of the case stated that Mr Corkill's instructing solicitors must file. 
[15]
While Professor Windsor, through Mr Lewis, retains an interest in the outcome of the proceeding, he abided the decision of the Court on the application for leave to appeal. 
[16]
I make no order as to costs. 
Schedule
IN THE HIGH COURT OF NEW ZEALAND 
AUCKLAND REGISTRY 
CIV-2008-404-008482 
UNDER theAccident Compensation Act 2001 
IN THE MATTER 
of an application for leave to appeal to the Court of Appeal pursuant to section 163(1) of the Act 
BETWEEN 
CHRISTOPHER O'NEILL 
 
Appellant 
AND 
ACCIDENT COMPENSATION CORPORATION 
 
Respondent 
Case Stated 
Accident Compensation Corporation 
15-17 Murphy Street 
PO Box 242 
Wellington 
Tel: (04) 918 7768 
Fax: (04) 918-7943 
Solicitor acting: M J Mercier 
Counsel assisting: BA Corkill QC 
Introduction: 
1.
With leave of this Court, Mr O'Neill appealed against the judgment of the District Court by which decisions of the Accident Compensation Corporation (the Corporation) were confirmed. The Corporation had declined cover to Mr O'Neill in respect of his claims for compensation based on medical misadventure. After adjournments, the Court received submissions as to whether it should hear expanded appeal points, one of which is relevant for this case stated: 
“Whether there was a ‘deemed decision’ for the purposes of section 146 of the Act, resolving issues in favour of Mr O'Neill. ”
Factual background: 
2.
On 14 December 1994, Mr O'Neill was seen by Professor Windsor in the outpatient department of Auckland Hospital. Dr Sood, Mr O'Neill's general practitioner, had referred his patient to a specialist as, in 1994, he had developed quite significant symptoms of gastritis and heartburn for which he was requiring regular medications. Professor Windsor was asked to determine whether surgical intervention may treat Mr O'Neill's condition better. 
3.
On 3 March 1995, at Auckland Hospital, Mr O'Neill underwent a laparoscopic fundopolication and posterior curoplasty operation. He was discharged from hospital four days later. 
4.
After initial improvements, Mr O'Neill began suffering “significant bloating symptoms”. Having been referred back to his surgeon, it was considered that the surgery was “too tight”. In March 1997, a balloon dilation of the area of surgical reduced narrowing, at the site of the fundoplication, was undertaken. A further operation, to similar effect, was performed on 9 September 1997. Neither relieved Mr O'Neill's symptoms. 
5.
A third operation was carried out on 17 April 1998. This operation discovered a rupture of the original fundoplication. The surgeon opined that Mr O'Neill suffered from oesophageal dysmotility, a condition known to be resistant to treatment. 
6.
In 2002, Mr O'Neill lodged a claim seeking cover for personal injury caused by medical misadventure. Greater detail was provide in a letter sent to ACC on 22 November 2002. ACC investigated Mr O'Neill's claims and obtained reports from other health professionals on the treatment given by Professor Windsor and the Auckland District Health Board during the period that Mr O'Neill was under their care. 
7.
On 12 March 2003, an authorised officer wrote to Mr O'Neill to advise that his “claim [had] been declined because it [did] not meet the criteria for medical misadventure”. A more detailed report was sent to Mr O'Neill, together with copies of relevant documents used by ACC to reach that opinion. Mr O'Neill was advised that he had three months within which to seek a review of ACC's decision. 
8.
Although the surgery and post-operative care of which Mr O'Neill complained was carried out at a time when the Accident Rehabilitation and Compensation Insurance Act 1992 was in force, the claim fell to be determined under the Injury Prevention, Rehabilitation and Compensation Act 2001 (the Act). Part 5 of the Act deals with dispute resolution, in relation to a decision by ACC on any particular claim. 
9.
On 25 May 2003, Mr O'Neill sent an email to the authorised officer of ACC indicating he was unable to meet the deadline for seeking a review because of the length of time required to collate necessary evidence. He sought an indefinite extension of time to seek a review. 
10.
On 27 May 2003, ACC responded to Mr O'Neill's communication, advising that there was no power to grant an indefinite extension of time but that his email of 25 May 2003 had been referred to its Review Unit, to be processed as an application for review of ACC's decision to decline cover. Section 138(1) requires that a reviewer must act “independently”, when conducting a review. 
11.
Mr R M Carter was appointed as the Reviewer. On 9 July 2003, he wrote to Mr O'Neill, with copies being sent to ACC and Professor Windsor, indicating that he wished to consider, as a preliminary point, whether he had jurisdiction to determine the “application” for review. He described the issue as “whether or not the application for review form dated 22 June 2003 can be accepted, even though it was outside the three months, because there are extenuating circumstances under section 135(3) of the Act”. As an alternative, Mr Carter indicated he would consider whether the email of 25 May 2003 could be accepted as an application to review ACC's decision. He added: 
I will set down a hearing date of this preliminary matter shortly. I will ask a member of our staff [Dispute Resolution Services] to seem [Mr O'Neill's] ACC's and Mr Windsor's agreement to that date. Alternatively, the preliminary hearing can be conducted by way of teleconference, with the agreement of the parties. 
After the hearing of this preliminary matter, I will issue a written decision, either confirming that I have jurisdiction to consider the substantive issue of medical misadventure or declining jurisdiction. 
If I decide that I have jurisdiction, then a further hearing on the substantive issue will take place. ”
(my emphasis)
12.
The hearing on the preliminary issue took place on 29 July 2003. In a decision given on 13 August, Mr Carter determined that the email of 25 May 2003 did not contain the information required by section 135(2) of the Act and was, therefore invalid. 
13.
Subsequent procedural steps were undertaken, which it is not necessary to set out in this Case Stated. 
Legal issue: 
14.
The legal issue which arose from the expanded ground of appeal was whether section 146(1), in its reference to the “date for the hearing”, means date of hearing fixed for the purpose of considering the merits of the review, as opposed to a hearing convened to deal solely with a jurisdictional point. If the meaning were the former, no hearing was set within the time to which section 146(1)(a) refers. If the latter, the hearing was convened in time. 
Parties' submissions: 
15.
The ACC submitted that the “deemed decision” provision does not apply in these circumstances. It was submitted that the plain and ordinary meaning of “hearing” ought to be applied, so that the setting of any hearing date will suffice. It was submitted that the scheme of Part 5 of the Act, in which the review process is found, does not support a narrow construction. 
16.
Mr O'Neill submitted that because no substantive review hearing ever took place before Mr Carter, he is entitled to the benefit of section 146. Mr O'Neill was aggrieved at the fact that, although the Corporation was prepared to treat his email of 25 May 2003 as an application for review, the independent reviewer found against him and, in effect, removed his right to challenge the Corporation's decision, on the merits. 
Matters considered in judgment: 
17.
In its judgment, the Court considered: 
(a)
The interpretation issue fell to be determined in the context of the dispute resolution provisions contained in Part 5 of the Act. 
(b)
The obligations on the Corporation when a claim is lodged reinforces the statute's emphasis on prompt decision making. 
(c)
The dispute resolution procedures contained in Part 5 involves similar considerations. 
(d)
The relative informality of the dispute resolution process, particularly in relation to its use (predominantly) by lay persons tells against an over technical interpretation of the legislation which has the ability to remove a citizen's right to seek a substantive review because an applicant has failed to state adequately the nature of the decision in issue on the grounds on which review is sought. 
(e)
Part 5 plainly envisages a date for a substantive hearing being set within three months after the review application is received by the Corporation. That interpretation is consistent with the general principles relating to the conduct of reviews and the provisions dealing with the hearing. 
(f)
Sections 144 and 145 of the Act are also relevant. 
(g)
The scheme seems to suggest that section 147 of the Act only applies if a review decision deals with substantive merit. There is no right of appeal (in the Act) against a decision declining jurisdiction to hear an application. Any challenge to a decision of that type would, ordinarily, be pursued through a judicial review proceeding in this Court. 
(h)
In this case, the relevant error that the reviewer made was to set only the jurisdictional point down for hearing on the first occasion, rather than both jurisdiction and substance. 
(i)
The reviewer erred in holding there was no jurisdiction to embark on a hearing of the review. The general tenor of Part 5 does not support the notion that a lay claimant should be deprived of a right of review on the basis he or she may not have understood precisely was required to comply with section 135(2). The reviewer and the District Court erred in holding against Mr O'Neill on the “deemed decision” point. The error arose from the failure to appreciate the need for jurisdiction to be resolved at the same time as any substantive hearing and by relying on section 147 of the Act, in circumstances where there was no “review decision” to which that could apply. 
(j)
The Court concluded that the reviewer had erred in setting a hearing solely for a jurisdictional question, when section 146(1) envisages a review hearing must incorporate questions of substance. 
Question for determination; 
18.
The question which the Court states for determination by the Court of Appeal is: 
(a)
Was the High Court wrong in law in concluding that the phrase ‘the date for the hearing’ in section 146(1) means a date of hearing fixed for the purpose of considering the merits of the review, as opposed to a hearing convened to deal solely with a jurisdictional point. 
(b)
Was the Court correct in determining that the reviewer should be deemed to have made a decision on the review in favour of Mr O'Neill? ”
19.
Annexed are: 
(a)
A copy of the reviewer's decision of 13 August 2003. 
(b)
A copy of the decision of Judge Beattie of 12 November 2004. 
(c)
A copy of the decision of Judge Barber of 27 October 2006. 
(d)
A copy of the judgment of Asher J of 29 June 2009. 
(e)
A copy of the judgment of the Court of 14 December 2009. 
(f)
A copy of the judgment of the Court of 31 March 2010. 
(g)
A copy of the judgment of the Court of 22 December 2010. 
Dated the ___ day of April 2011 
P R Heath J 


O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010. The Act has been renamed the Accident Compensation Act 2001. 
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 per Randerson J
Ibid, at para [18]. 
Waller v Hider [1998] 1 NZLR 412 (CA)Has Litigation History which is not known to be negative[Blue] 
Ibid, at 413. 
O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010 at para [24]. 
O'Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 14 December 2009 at para [3]. 

From Accident Compensation Cases

Table of Contents