Hiscock v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 52 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 97 of the Act BETWEEN DONALD HISCOCK of Rotorua Appellant (Appeal No. DCA 92/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for Leave to Appeal to the High Court against the decision of His Honour Judge M J Beattie delivered on 1 November 1999 under number 307/99. Applications for Leave to Appeal to the High Court are governed by section 97 of the Accident Rehabilitation and Compensation Insurance Act 1992 which insofar as it applies states: '(1) Where any party is dissatisfied with any decision of a District Court under this Act as being erroneous in point of law, that party may, with the leave of that District Court, appeal to the High Court: provided that, if the District Court refuses to grant leave to appeal to the High Court, the High Court may grant special leave to appeal." The issue before the Court is whether the appellant was entitled to cover under the Act for personal injury by medical misadventure being the consequences of mercury poisoning caused by the use of dental amalgam. 2 In his decision Judge Beattie recorded the fact that from about 1991 onwards the appellant had developed symptoms of chronic cough, fatigue, irritability, muscular weakness and chest pains. In September 1996, after he had not been able to obtain relief following investigation by a number of physicians, the appellant was referred to Dr M E Godfrey, a specialist in Preventive and Environmental Medicine. As a result of tests carried out by Dr Godfrey, he concluded that the appellant was suffering the toxic effects from a chronic accumulation and retention of mercury. Thereafter, the appellant underwent a mercury detoxification programme, combined with the removal of the 16 amalgam fillings in his teeth. These procedures were carried out in November and December 1996, as a result of which the appellant's evidence was that by January 1997 the persistent burning sensations he had previously experienced in his chest and other symptoms had ceased. After the respondent had declined the appellant's claim for cover, he applied for a review of that decision which was also unsuccessful. It was that decision which he took on appeal before Judge Beattie. In his decision, Judge Beattie found on the facts that the appellant suffered a comparatively high mercury content in his body which was the cause of the several ailments of which he complained, and which were evident between 1991 and 1996. His Honour also found on the facts that the only possible source of the toxicity was the amalgam fillings which had been inserted in the appellant's teeth in the 1970s and 1980s. His Honour also found on the evidence that the likelihood of toxicity and the adverse consequences arising therefrom, were likely to occur where amalgam fillings are given as part of dental treatment, but that it was far less than the one per cent threshold provided in the definition of a "medical mishap" under section 5 of the Act. The appellant's grounds for this application are that the evidence upon which His Honour held that the less than one per cent threshold was not satisfied, was "questionable". The appellant's second ground for his Application for Leave arises out of His Honour's finding that there must have been some delay between the placement of the amalgam in his teeth and the onset of symptoms. The appellant's submission is that once diagnosed with chronic poisoning the length of time for the effects to be shown: "In no way excuses the fact of poisoning or separates the case from the source exposure, as the incidence of poisoning commences immediately upon placement of amalgam. The onset of symptoms occurs after time." It appears that the appellant's principal argument is that His Honour misunderstood the evidence placed before him. The respondent opposes the application and submits that His Honour correctly identified the law involved. The respondent further submits that having done that, His Honour considered that on the evidence the appellant had failed to meet the necessary criteria to establish that he had suffered a medical misadventure which would entitle him to cover. 3 I have considered His Honour's decision, which I conclude is based purely on the facts and evidence before him. I do not consider that on the basis of the submissions made by the appellant there is any question of law arising out of the appeal which requires to be put before the High Court. The application for Leave to Appeal is declined. DATED at WELLINGTON this 30th day of March 2000 A W Middleton District Court Judge dca92-99.doc(aw)