REILLY v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 542

REILLY v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 542 [23 March 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-000579[2022] NZHC 542BETWEEN ALEXANDER REILLYAppellantAND ACCIDENT COMPENSATION CORPORATIONRespondentHearing: 21 March 2022Appearances: J Miller for the Appellant J Coates and R Mould for the RespondentJudgment: 23 March 2022JUDGMENT OF GRICE J[1] This is an application to adduce further evidence in an appeal set down for hearing on 4 April 2022.[2] The appeal is against a judgment of the District Court dismissing a decision of the District Court. That court dismissed an appeal against a decision of the respondent declining Mr Alex Reilly's application for a treatment injury claim.1[3] On 17 September 2021, the District Court gave leave to appeal to the High Court against the Appeal Decision on a question of law, formulated as follows: 21 Reilly v ACC [2020] NZACC 158 at [3] (the Appeal Decision).2 Reilly v ACC [2021] NZACC 140 at [8]. The references are to provisions of the Accident Compensation Act 2001.Did the District Court misconstrue the test for causation and/or incorrectly apply that test in relation to the treatment injury claim under sections 20(2)(b) and 32?[4] The evidence sought to be adduced is from a medical expert, Dr Suzanne Davis, a paediatric neurology and neurophysiology specialist. Her report, dated 20 January 2022, has been provided to the Court for the purposes of this application. It was obtained by the respondent. It had approached the appellant to jointly brief a further expert on the basis that the reports and evidence before the Court will be some on appeal will be at least three years old by the time the appeal is heard. The respondent declined to be involved in a joint brief.[5] The Accident Compensation Corporation (the Corporation) says it seeks to put the additional expert report before the Court in order for the Court to have the most up-to-date evidence, particularly when the issue involved relates to the causation by treatment injury and the degree of severity of the short and long-term effects of Guillain Barre syndrome. Mr Coates, for the Corporation, noted that treatment injury was the delay in treatment caused by inappropriate medical advice given in the onset of Guillain Barre syndrome. The syndrome was "rare, severe and biologically not well understood by medical science" and epidemiological studies and empirical data regarding the effect of such a delay are limited. 3 The Corporation says the appellant is asking the Court to formulate a new test for causation to apply in cases where such rare conditions apply.Background[6] Mr Reilly, then aged 15 years, became unwell while the family was holidaying in the Nelson area in January 2017. The Corporation accepts that there was a seven-and-a-half to eight-hour delay in getting Mr Reilly to Nelson Hospital and treatment for the syndrome. This was due to wrong medical advice given by a nurse attending an out-of-hours medical centre helpline that Mr Reilly's mother had contacted for assistance. When Mr Reilly became severely unwell some hours later, a further call to the helpline resulted in his mother arranging an ambulance to take Mr O'Reilly to Nelson Hospital. He was shortly thereafter diagnosed with3 At [21].Guillain Barre Syndrome. Treatment followed. However the severity of and the continuation of the effects of the syndrome on Mr Reilly are significant.[7] The Corporation accepts that delay can be treatment failure and there was delay here. The focus of the appeal is on whether it was causative of the severity of Mr Reilly's tetraplegia or of the Guillain Barre syndrome/neurological injury he suffered. The delay in treatment has been accepted as being in the vicinity of seven-and-a-half to eight hours. It is not necessary to go into any further detail about the background at this stage.Principles — admission of fresh evidence on appeal[8] Rule 20.16(3) of the High Court Rules 2016 deals with applications for leave to adduce further evidence. It provides that:The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.[9] The general test for admitting new evidence on appeal requires the evidence to be cogent and likely to be material, and not reasonably discoverable at an earlier stage. In B v A, the High Court summarised the principles as follows: 4(a) the Court can receive further evidence if it thinks that the interests of justice require it to do so;(b) it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;(c) admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;(d) generally, the further evidence must be fresh, credible and cogent;(e) evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;4 B v A [2020] NZHC 580 at [25].(f) the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;(g) the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court's limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and(h) the standard to be met is "rightly high".[10] The respondent says it is important the Court has the most up-to-date expert evidence. Mr Coates, however, noted Dr Davis's report indicated that there was little further in the way of relevant studies and research from the position three years ago.[11] Mr Coates accepts that if the Court granted leave to adduce the report the appellant would be entitled to obtain a further report and the respondent would not oppose that being adduced in evidence.[12] The respondent opposes the application. It points out that the date for hearing of the appeal of 4 April 2022 has been set for some time. Both parties have filed their submissions. Mr Miller, for the appellant, says it would be inevitable that an adjournment would be necessary in order for him to consider the evidence and possibly obtain a further report.Analysis[13] Dr Davis' report also covers the events leading to the delay in diagnoses. These were traversed in the District Court. Dr Davis' evidence in that regard is not fresh.[14] The two main medical experts, whose reports and evidence were before the District Court, were Drs Singhal and Dwyer. Each of those referred to various publications and studies in support of their conclusions. In my view, Dr Davis' report discloses there have been no significant developments in the medical understanding of the effect of delay in cases such as this on the extent of debilitation or injury resulting from the syndrome.[15] In my view, the evidence does not achieve the "rightly high" standard required before leave is granted to admit new evidence. While Dr Davis' evidence is fresh in that it gathers research over the years following the research referred to by Drs Singhal and Dwyer, and there is no criticism of its credibility or cogency, it would add little to the evidence before the Court.[16] It is generally appropriate that an appeal on a question of law, such as this, is heard based on the evidence before the relevant Tribunal or Court from which the appeal originates. To grant leave to adduce the evidence of Dr Davis would inevitably lead to delays while the appellant sought further reports and may lead to the substantial re-litigation of the substantive case. While that is not a high risk given the narrow focus of the research, nevertheless it is a risk which must be taken into account.[17] However, even if that were not a risk, in my view, the high standard for the introduction of the proposed evidence is not met here. There are no special reasons for hearing the evidence. However, there would be clear prejudice to the appellant due to the likely delay of the hearing at this late stage.[18] Accordingly, the application to adduce further evidence is dismissed.[19] Costs are reserved.____________________Grice JSolicitors:John Miller Law, WellingtonClaro Law, Wellington