Stanley v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND (2013] NZACC 110 ACR 121/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL ON QUESTIONS OF LAW UNDER SECTION 162 OF THE ACT BETWEEN HARRY WINSTON STANLEY Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: Decided on the papers at Auckland Judgment: 19 April 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC [1] This was an application for leave to appeal to the High Court on questions of law the 19 September 2011 judgment of Judge Beattie. [2] As appears from that judgment, in issue on appeal were two decisions of the Corporation the one dated 16 and the other dated 25 February 2009 the effect of which was to decline treatment injury cover for 5 medical conditions being; 1. Sexual dysfunction. 2. Abdominal hernia. 3. Carpal tunnel syndrome. 4. Accelerated degenerative arthritis. HARRY WINSTON STANLEY V ACCIDENT COMPENSATION CORPORATION DC AK [2013] NZACC ACR 121/10 [19April 2013] 5. Morbid obesity. [3] Mr Stanley's case was that each and all of these conditions resulted from the prescription for him of an herbal remedy but the Corporation had determined that none of the conditions was caused by that treatment. [Although I see that the judge noted that the Corporation had in fact granted cover for some other medical conditions as having arisen because of the taking of the herbal remedy.] [4] In the result Judge Beattie held that the Corporation (which had been upheld on review in this respect) had been correct to decline to grant cover for the 5 conditions for which it was sought and it is from that decision that this application arises, [5] The application itself was lodged with the registry on or about 28 September 2011. On 13 December 2011 this was followed by what were described as submissions in support which, above the name of Mr John Miller as counsel, said this: 1. Leave to appeal is sought on three questions of law. 1.1 Physical injury. The first is that, with respect, Judge Beattie applied too narrow an interpretation of the definition of physical injury resulting in cover being rejected for the applicant's injuries. 1.2 Causation. The second is that, again with respect, Judge Beattie made errors of fact (detailed in the 23 paragraphs of the attached material) which resulted in a misapplication of the legal test of causation. 1.3 Errors of Fact. The third is that the errors of fact referred to above resulted in, again with respect, Judge Beattie (a) failing to take relevant considerations into account, (b) relying on irrelevant considerations, (c) failing to draw proper inferences and (d) making findings that were unsupported by the evidence. Accordingly leave is sought to appeal on these three points of law. [6] That was all there was to it apart, that is, from the annexure which was a letter of 14 October 2011 to Mr Miller's firm from another firm of (presumably instructing) solicitors. The letter ran to 10 or so pages and expanded variously on an initial statement that "we note the following errors and matters of concern with the judgment". [7] What thus followed comprised a mixture of: Assertions reading more like medical than legal commentary. Contentions concerning medical literature. Assertions as to the actual or potential sequelae of various states of health such as one would expect to come, if at all, from a duly qualified medical professional rather than a legal practitioner. Critiques of other medical evidence. Contentions such as that the Court was wrong to accept a particular doctor's "speculative opinions", as he was not duly qualified to opine. Assertions that various aspects of the case got no consideration in the judgment. Assertions that radiographical "discrepancies" had not been given due attention - And these are but some indications of the nature and content of the communication. [8] This being an application for leave to appeal on questions of law (and thus not one for submissions of a kind which would follow on a general appeal) the application was in my opinion and at that point left in a quite unsatisfactory state. [9] On 16 January 2012 the Corporation responded through counsel in terms including these submissions: 2.8 With respect, the submissions for the appellant do not identify how, if at all, the Court erred in any of the respects alleged; for example, how the Court misinterpreted the definition of personal injury, how the Court misapplied the legal test of causation or how the alleged errors of fact resulted in any of the alleged failings. 2.9 No doubt the absence of detail reflects the fact that the Court's determination does not stand or fall on its interpretation of personal injury or application of the causation test. This is not a case where the appellant's evidence falls short of the evidential bar by a small margin. The evidence here was well under the bar. 2.10 The letter from the previous solicitors, dated 14 October 2011, similarly does not assist the appellant with respect to the present application; the document simply emphasises that the dispute in this appeal is one of fact and not law, The author takes issue, and thus disagrees, with the Court's analysis of the facts and medical evidence. The assertions by the author do not constitute a basis to grant leave to appeal to the High Court. 2.11 It is submitted that the appeal turned entirely on the Court's analysis of the factual and medical evidence. There was ample, if not overwhelming, evidence to support the Court's findings and determination. Indeed, as submitted above, the evidence for the appellant was entirely deficient. It is submitted that the circumstances of this case do not warrant the grant of leave to appeal to the High Court. [10] On 27 January 2012 the registry asked Mr Miller's firm to file any submissions in reply within 28 days but on 10 April 2012 the registry received advice that the firm was no longer representing Mr Stanley, another lawyer being identified as now acting. [11] Come February this year the registry, still persisting in its endeavours to bring matters to a head, was now in touch with the author of the 14 October 2011 letter who, so it now appeared, was now in fact acting directly for Mr Stanley. [12] Thereafter on 16 April 2013 that solicitor filed an 11 page memorandum in which it was now asserted that this Court had fallen into error of law: In not considering s 20(2)(d) of the Act. In finding that obesity was not a physical injury. Who did not ultimately pursue the case. In failing adequately to consider the likely causal link of the steroids to each of the claimed injuries. Errors of law which resulted in a misapplication of the legal test of causation; and Errors of fact which led to errors of law. [13] The submissions then set out to expand upon these propositions but, like the earlier letter, in terms asserting numerous matters of alleged (and contrary to the judge's findings) fact and, at that, in many cases doing so as if those matters could never be in doubt, [14] Again the best description, or so it seems to me, of the substance of the submissions is that they read more like an argument on general appeal than that required on an application of this kind - that notwithstanding the purported identification at the outset of a fresh set of points of law for scrutiny. [15] Given the way in which this application has been framed and reframed, on each occasion with, in substance, resort then to matters factual rather than legal, I confess that I have been unable to identify the application as other than one in effect seeking a rehearing on appeal of matters of factual merit, including weight and worth of medical evidence, [16] Such endeavours are not within the scope of's 162 of the Act. [17] In the result then the application is declined. Roderick Joyce QC District Court Judge