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Accident Compensation Cases

Legal Aid Review Panel Decision No 1/08 (LARP, 07/09/07)

Judgment Text

Convenor D.J. Maze
An aided person (the “Applicant”) has applied for a review of the decision of the Legal Services Agency (the “Agency”) dated 11 June 2007. By that decision the Agency declined aid to the aided person to take an appeal from an Accident Compensation Corporation (“ACC”) review. 
Grounds of the Application 
A decision may be reviewed on the grounds that it is either manifestly unreasonable or wrong in law. 
The Applicant submits the Agency's decision was manifestly unreasonable and wrong in law. 
The Facts 
On 10 August 2005 the Applicant was hospitalised after suffering from a headache. A CT scan showed that he was suffering from a subarachnoid haemorrhage which required surgery. During surgery an aneurysm in the Applicant's brain ruptured, and the surgical team had to clip that aneurysm for some 40 minutes to stem the bleeding. The medical reports indicated that the surgery saved his life, but because of the length of time the blood flow in that part of his brain was restricted, the aided person suffered stroke-like symptoms and other side effects. 
He subsequently sought ACC coverage, arguing that a “medical misadventure” had occurred. The issue appears to be whether the complications to the operation were a normal risk of surgery, or whether they were so unusual as to meet the criteria for medical misadventure set out in the ACC legislation. 
Aid was granted on 28 June 2006 for the Applicant to take an application for review against ACC's decision that the Applicant's case did not meet the statutory criteria. 
By decision dated 25 January 2007 a review officer found against the Applicant. The Applicant now seeks aid to appeal against that decision. 
On 11 June 2007 the Agency declined aid to the Applicant to take the appeal, its grounds being that the prospects of success were insufficient to justify a grant of aid. 
The Applicant's Submissions 
The Applicant submits: 
The Agency was acting as “judge and jury” in circumstances where a neuropsychiatrist's report obtained by the aided person showed that there was an arguable case and that there were prospects of success. 
The Agency's role is to provide access to justice - by denying aid where the Applicant has an arguable case the Agency is setting up an obstacle to justice for the Applicant. 
The Agency's Submissions 
The Agency submits: 
Its decision to refuse aid was not manifestly unreasonable. 
When appellate aid is considered the Applicant has an onus to show there is a reasonable likelihood of success, identifying errors of law or fact which might be overturned on appeal (LARP 085/02 (9 October 2002)). 
The test for appellate aid is a stricter one than aid for first instance proceedings (LARP 480/02 (20 June 2002)). 
The review decision appears to be sound. 
The Applicant has not provided a copy of the notice of appeal, nor has he identified those parts of the reviewer's decision that might be said to be wrong in law or which might be overturned on appeal. 
It does not believe that a reasonable individual would take this appeal if paying for his or her legal costs: Timmins v Legal Aid Review Panel [2004] 1 NZLR 708
The Issue 
The issue before the Panel is whether the Agency's decision to decline aid for the taking of an appeal against the review officer's decision was manifestly unreasonable and wrong in law. 
The Law 
A decision is “manifestly unreasonable” if it is shown “clearly and unmistakably” that the Agency's decision “went beyond what was reasonable or was irrational or logically flawed” (Legal Services Agency v Fainu [2002] 17 PRNZ 433). 
A decision may be wrong in law for a variety of reasons. It may be wrong in law, for example, if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle. It may be wrong in law if a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter, or if the decision depends on findings which are unsupported by the evidence (Legal Services Agency v Fainu (supra)). 
In Legal Services Agency v A and O [2003] 17 PRNZ 443 John Hansen J said at paragraph 11 that manifestly unreasonable meant “something different from what is ‘wrong in law’, and would be made out “where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed”. His Honour also said that “manifestly unreasonable” required “not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for”. His Honour added that “the determination of what is ‘manifestly unreasonable’ is to be made objectively by the members of LARP applying their judgment to the matter in accordance with the principles stated” and that it was “not for LARP to substitute its view of what the decision should have been for that of the Agency”
The Panel has perused the medical reports provided. With due respect to the Applicant's view, the defence neuropsychiatrist's report seems to be equivocal on the issue of whether the complications which occurred during surgery could be construed as medical misadventure and the Agency is correct in submitting that the Applicant has not articulated his grounds of appeal. 
The Panel was initially inclined to dismiss this application. On the evidence before it, the Agency's decision appears neither manifestly unreasonable or nor wrong in law. On reflection however it believes the appropriate course is to send it back for the Agency to reconsider its decision but after giving the Applicant time to cure the evidential defects which the review presents. Thus the Panel proposes to give the Applicant the opportunity of putting material before the Agency as to his prospects of success. 
For the reasons set out above, and instead of determining the review, the Panel directs the Agency to reconsider its decision. The Agency is directed to take into account: 
any fresh medical evidence which might be called by the Applicant in support of his appeal; and 
his detailed grounds of appeal which ought identify the errors of law or fact in the review decision which the Applicant would rely on in any appeal against the review decision. 
The Applicant must furnish the Agency with any fresh medical evidence or his points on appeal within 42 days from the date of this decision. 
The Agency is directed to reconsider its decision within 15 working days either of receiving the additional information or from the expiry of 42 days from the date of this decision. 

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