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Accident Compensation Cases

Jones v Accident Compensation Corporation (HC, 25/02/14)

Judgment Text

RESERVED JUDGMENT OF ELLIS J 
Ellis J
[1]
On 3 September 1987 the Accident Compensation Appeal Authority (the ACAA) dismissed an appeal by Mr Jones in relation to his claim for medical misadventure under Accident Compensation Act 1982 (the 1982 Act). The medical misadventure for which Mr Jones had sought cover related to an adverse reaction he had apparently had, in 1979, to the drug Sinequan. It is evident from the ACAA's decision that his claim had two facets, namely that: 
(a)
His physical1
| X |Footnote: 1
The immediate physical reaction took the form of paroxysmal atrial tachycardia, or a racing heart beat. 
and psychological reaction to the drug was rare and severe; 
(b)
His adverse reaction had been caused by an underlying condition, Lown-Ganong-Levine syndrome (LGLS), which his doctor (the doctor who prescribed the Sinequan) had been negligent not to have diagnosed. 
[2]
In the 1987 decision, Judge Middleton upheld the position taken by the Accident Compensation Corporation (ACC) declining Mr Jones' medical misadventure claim. 
[3]
Mr Jones' appeal rights in relation to this decision were governed by s 111 of the 1982 Act, which provided: 
“111
Appeal to High Court 
(1)
Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against that order or decision: 
‘Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal. ’”
(2)
The Appeal Authority or the High Court, as the case may be, may grant leave accordingly on a question of law or if in its opinion the question involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision. 
(3)
(4)
Every such appeal shall be made by giving notice of appeal within 28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the Appeal Authority or the Court may allow on application made either before or after the expiration of those 28 days. 
(5)
In its determination of any appeal, the Court may confirm, modify, or reverse the order or decision appealed against, and, subject to section 112 of this Act, the decision of the Court shall be final and conclusive. 
(6)
Subject to the provisions of this section, the procedure in respect of any such appeal shall be in accordance with the rules of the Court. ”
[4]
By virtue of s 391 of the Accident Compensation Act 2001 (the 2001 Act) s 111 continues to apply to Mr Jones' case. 
[5]
It will be observed that under s 111: 
(a)
Leave from the ACAA or special leave from this Court is a prerequisite to bringing an appeal from an order or decision of the ACAA; 
(b)
Any such appeal is limited to: 
(i)
a question of law; or 
(ii)
a question which, in the view of either the ACAA or the High Court (as the case may be), by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision. 
(c)
a person who wishes to appeal has 28 days from the date of the relevant decision to notify (in the first instance) the ACAA of any application for leave to appeal; but 
(d)
the ACAA or the High Court may, in their discretion, extend the time for making an application for leave or for special leave, as the case may be. 
[6]
In Mr Jones' case, he did not notify the ACAA of any application for leave to appeal either in the 28 day period following Judge Middleton's 1987 decision or for some considerable time thereafter. Indeed, it was not until some 26 years later that leave was sought. Necessarily, Mr Jones was also required to apply for an extension of time for making the leave application. 
[7]
On 4 October 2013, Mr Jones' application was declined by the ACAA (Judge Beattie). The Authority's decision is brief, and I set it out in full. Judge Beattie said: 
“[1]
In an application dated 10 June 2013, the applicant lodged an application with the Accident Compensation Appeal Authority for leave to appeal out of time to the High Court in respect of the decision of Judge A W Middleton of the Accident Compensation Appeal Authority dated 3 September 1987. 
[2]
It is of course the case that this application for leave to appeal has been lodged nearly 26 years after the decision in question was made. 
[3]
The applicant has made an application pursuant to Section 111 of the Accident Compensation Act 1982, and where by subsection (4) a Notice of Appeal is required to be lodged within 28 days after the date on which the decision appealed against was notified to the applicant, although it is the case that the Appeal Authority does have the right, in certain circumstances, to allow an application to be lodged outside that 28 days. 
[4]
It is also the case, and the one which I find to be the most relevant factor in this application, that the requirement for an appeal to the High Court can only be made where the question in issue is a question of law. 
[5]
The decision of Judge Middleton which is being sought to be appealed to the High Court was a decision relating to whether or not the appellant had suffered a personal injury for which he was entitled to cover, being a personal injury suffered by way of medical misadventure. 
[6]
I have considered the evidence and the decision of Judge Middleton in this case, and I find that it is wholly a decision based on facts as to whether or not the circumstances of the appellant's condition was one which established on the facts that the condition of medical misadventure had occurred, and therefore whether there was a factual basis for the granting of cover under the Act. He ruled that the evidence did not establish that the condition of medical misadventure had occurred. 
[7]
By reason of the fact that the Notice of Appeal is not one where it can be determined that the question in issue is a question of law, I therefore rule that the application for leave to appeal to the High Court is declined. ”
[8]
It must, I think, be said that it is not entirely clear from this decision whether Judge Beattie was declining Mr Jones' application for an extension of time or his application for leave, or both. While in [3] he refers to the need for an extension of time, his discussion and conclusion (at [7]) appears to be concerned more with the substantive requirement for leave. The more logical view appears to me to be that he determined both questions against Mr Jones. That conclusion reflects the reality that the merits of the proposed leave application are relevant to the prior question of whether an extension of time should be granted. 
[9]
In any event, Mr Jones now applies to this court for special leave to appeal Judge Middleton's decision. Again, as a prior issue, it is necessary for him to satisfy the Court that an extension of time for making that application should be granted. It is therefore to that issue that I turn first. 
Extension of time 
[10]
In McDougall v Accident Compensation Corporation this Court discussed the factors that were to be weighed when determining whether to grant an extension of time for lodging an application for review.2
| X |Footnote: 2
McDougall v Accident Compensation Corporation (1983) NZAR 85 (HC). For a more recent example, see also Morgan v Accident Compensation Corporation [2012] NZHC 1789Has Litigation History which is not known to be negative[Blue]  at [15]. 
In my view, they apply equally in relation to applications for leave under s 111. The relevant factors are: 
(a)
the length of the delay; 
(b)
the reasons for the delay; 
(c)
the strength and merits of the case on review (or appeal); and 
(d)
any prejudice arising to the Corporation in the event that an extension were granted. 
Discussion 
[11]
The starting point appears to me to be that a delay of 26 years is, on any analysis, extraordinary.3
| X |Footnote: 3
I accept, however, it is not entirely without precedent, as the decision in Morgan shows. There, special leave to appeal the ACAA's refusal of an extension of time in the case of a 30 year delay was declined. 
It seems that no explanation for the hiatus was provided to the ACAA and, no doubt, it is for that reason that the learned Judge does not discuss it. 
[12]
Annexed to Mr Jones' application for special leave, however, was a very lengthy psychological report that has been prepared (as I understand it, at a cost of some $10,000 to ACC) by a clinical psychologist, Mr Ted Mason. In it, Mr Mason refers (inter alia) to the previous involvement of the psychiatrist Dr Laurie Gluckman in aspects of Mr Jones' historical dealings with ACC. As Judge Middleton's 1987 decision makes clear, Dr Gluckman in fact prepared two reports in relation to the medical misadventure claim which Mr Jones now wishes to pursue on appeal. 
[13]
As is tolerably well known, Dr Gluckman was the subject of disciplinary proceedings in 1990. More relevantly, his involvement with, and work for, ACC was the subject of review and criticism by Judge Peter Trapski in his 1994 Report of the Inquiry into the Procedures of the Accident Compensation Corporation
[14]
Mr Jones referred me in this respect to an (interim) ACAA decision in which, because of Dr Gluckman's earlier involvement with the claimant (Mr Evans), and based on a report by Mr Mason, the Authority referred the matter back to the Corporation for consideration of an ex gratia payment.4
| X |Footnote: 4
Evans v ACC ACAA 10/2000, 18 May 2000
 
[15]
As the Evans decision itself makes clear, however, Judge Trapski had prepared a specific report about Mr Evans' interaction with Dr Gluckman which contained specific criticism of the way the doctor had handled his particular case. There is no such report in relation to Mr Jones. Moreover, in Mr Jones' case, the existence of Mr Mason's report cannot really assist on the issue of delay. As in Evans, Mr Mason's report about Mr Jones was written in 1996, nearly 20 years ago Presumably it has been in Mr Jones' possession since that time and yet he did not take action.5
| X |Footnote: 5
The Evans decision itself was given in 2000; there was clearly no issue of excessive delay. 
 
[16]
Lastly, as Judge Middleton's 1987 decision makes clear, Dr Gluckman's involvement in Mr Jones' case was far from determinative of his claim; the two reports written by him merely appear to have endorsed what several other medical practitioners had said. On my reading of the decision it is impossible to imagine that the ACAA would have reached a different conclusion, had they not been obtained. 
[17]
There is accordingly, no material before the Court upon which I could conclude that the very significant delay in seeking leave to appeal is explicable or justified. 
[18]
The length of the delay would also, in my view, inevitably prejudice the Corporation if leave were to be granted. Mr Hlavac advised that ACC (unsurprisingly) no longer have copies of the relevant reports and documents. Moreover, the possibility that the Corporation might be required, if the substantive appeal were permitted to proceed (ie both an extension of time and leave to appeal were granted) to consider and determine a claim for weekly compensation for an injury suffered 35 years ago (in 1979) cannot lightly be countenanced. 
[19]
In terms of the merits of the proposed appeal, I agree with Judge Beattie that Judge Middleton's decision appears to have turned on its facts. But I acknowledge that Mr Jones nonetheless did attempt to articulate points of law and matters of public importance which, he said, arose from the decision and which warranted such a late appeal. In summary these were that: 
(a)
Judge Middleton erred in his interpretation and application of the concept of “medical misadventure”; and 
(b)
the role played by Dr Gluckman in the case gives rise to a question of general or public importance. 
[20]
I have dealt with the latter point already, above. A reading of Judge Middleton's decision makes it clear that Dr Gluckman's role was a subsidiary one; the views he expressed were merely supportive of others. I consider it highly unlikely that his reports made a difference to the outcome. 
[21]
As far as the former point is concerned, it may be noted that, in 1987, the essential elements of “medical misadventure” was bad fortune or mishap for the patient of a kind where:6
| X |Footnote: 6
MacDonald v Accident Compensation Corporation (1985) 5 NZAR 276 (HC)Has Cases Citing which are not known to be negative[Green] ; and Viggars v Accident Compensation Corporation (1986) 6 NZAR 235 (HC)Has Cases Citing which are not known to be negative[Green] 
 
(a)
the event that occurred was so unusual and unlikely that it could properly be described as a mischance or bad fortune (it is rare); or 
(b)
the risk of a minor adverse consequence was likely, but the actual consequence was grave or severe; or 
(c)
the injury is suffered as a result of medical error or negligence. 
[22]
In Mr Jones' case, the Judge's application of this law was, in my view, clearly based on the numerous medical opinions before him. The decision makes it tolerably plain that: 
(a)
on the basis of the cardiologists' evidence, there was no negligence in any failure by Mr Jones' doctor to diagnose LGLS;7
| X |Footnote: 7
At least one of the doctors doubted the LGLS diagnosis altogether. 
 
(b)
although Mr Jones' reaction to the Sinequan was rare: 
(i)
the cardiological symptoms suffered by Mr Jones were transitory and there was no lasting or permanent damage; 
(ii)
the longer term emotional distress suffered by Mr Jones as a result of the cardiological event involved an aggravation of his pre-existing depression and anxiety and was not predominantly caused by that event. 
[23]
In my view, therefore, there are no tenable questions of law or questions of public importance raised by Mr Jones' proposed appeal. 
Special leave 
[24]
Although the conclusion I have expressed in the preceding paragraph suffices to deal with the matter, I briefly, and for completeness, consider the issue of special leave. 
[25]
In Kenyon v Accident Compensation Corporation Fisher J recorded (at [15]) his agreement with the submissions he had received as to the effect of the authorities relating to special leave.8
| X |Footnote: 8
Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC)Has Cases Citing which are not known to be negative[Green]  at [15]. 
They were that: 
“(a)
The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA)Has Cases Citing which are not known to be negative[Green]  
(b)
Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43Has Cases Citing which are not known to be negative[Green]  
(c)
The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Limited (1990) PRNZ 464 
(d)
It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  
(e)
As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra). ”
[26]
This continues to be an accurate and useful summary of the relevant principles. 
[27]
In my view, granting Mr Jones special leave to appeal would not be consistent with ensuring that scarce judicial time is allocated sensibly because: 
(a)
there is no discernible issue of principle at stake; 
(b)
there is nothing before me to suggest that cover of any significant amount is at issue; 
(c)
the proposed appeal has no reasonable prospect of success; and 
(d)
no extraordinary factor which was not properly taken into account by the ACAA has been identified. 
[28]
For essentially the same reasons, Mr Jones has been unable to show that (special) leave is required in the interests of justice. 
Summary 
[29]
For the reasons I have given I decline to grant Mr Jones an extension of time for applying for special leave to appeal Judge Middleton's 1987 decision. Were it necessary for me to determine the matter I would also decline the application for special leave itself. 
[30]
There is no issue as to costs. 


The immediate physical reaction took the form of paroxysmal atrial tachycardia, or a racing heart beat. 
McDougall v Accident Compensation Corporation (1983) NZAR 85 (HC). For a more recent example, see also Morgan v Accident Compensation Corporation [2012] NZHC 1789Has Litigation History which is not known to be negative[Blue]  at [15]. 
I accept, however, it is not entirely without precedent, as the decision in Morgan shows. There, special leave to appeal the ACAA's refusal of an extension of time in the case of a 30 year delay was declined. 
Evans v ACC ACAA 10/2000, 18 May 2000
The Evans decision itself was given in 2000; there was clearly no issue of excessive delay. 
MacDonald v Accident Compensation Corporation (1985) 5 NZAR 276 (HC)Has Cases Citing which are not known to be negative[Green] ; and Viggars v Accident Compensation Corporation (1986) 6 NZAR 235 (HC)Has Cases Citing which are not known to be negative[Green] 
At least one of the doctors doubted the LGLS diagnosis altogether. 
Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC)Has Cases Citing which are not known to be negative[Green]  at [15]. 

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