MORGAN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2494

MORGAN v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2494 [2 October 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2019-404-1049[2019] NZHC 2494UNDER the Accident Compensation Act 2001IN THE MATTER of an application for special leave to appealunder s 162 of the ActBETWEEN JEREMY DAVID MORGANApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentDate of hearing: 1 October 2019Appearances: R S Pidgeon for the applicantF L Becroft for the respondentDate of judgment: 2 October 2019JUDGMENT OF JAGOSE JThe judgment was delivered by me on 2 October 2019 at 3.00pm.Pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:R S Pidgeon Barrister, AucklandMedico Law, Auckland[1] Under s 162(3) of the Accident Compensation Act 2001, the applicant, JeremyMorgan, seeks special leave to appeal Judge Henare's 8 November 2018 decision inthe District Court at Auckland – dismissing Mr Morgan's appeal against a reviewdecision denying him compensation by the respondent Corporation, in relation toalleged symptoms of his topical exposure to the pesticide paraquat – as being wrongin law.1Background[2] On 20 August 2014, Mr Morgan raised a claim for compensation with theCorporation, on the basis of his "exposure to paraquat spray in contracting work" inDecember 1997, to which he attributed various debilitating physical symptoms.A substantial body of medical evidence generally was supportive of the propositionMr Morgan's symptoms were consistent with chronic fatigue syndrome.[3] For Mr Morgan, Dr Damian Wojcik initially assessed him as suffering"significant current disability from chronic fatigue syndrome and multiple chemicalsensitivity", later confirming the latter to have been "triggered by a single pointexposure to paraquat". For the Corporation, Dr Ruttenberg noted Mr Morgan'sfunctional disorders as wider than chronic fatigue syndrome, and incorporatingmultiple chemical sensitivity, but without attribution to paraquat toxicity and "with noobvious evidence of structural, mechanical or other derangement". Dr Ruttenbergcommended reference to the Corporation's Toxicology Panel. At Mr Morgan'srequest, the Corporation also sought advice from Dr Black, an independent specialistin occupational medicine, who considered Mr Morgan's "best diagnosis" remainedchronic fatigue syndrome, but disputed such could be caused by chemical exposure(and doubted multiple chemical sensitivity's applicability). The Toxicology Panelcould find "no papers linking paraquat specifically to chronic fatigue syndrome ormultiple chemical sensitivities". It concluded "the whole of the evidence did not riseabove the level of possibility to the extent that an inference of causation could bedrawn".1 Morgan v Accident Compensation Corporation [2018] NZACC 179.[4] The Corporation initially declined cover on grounds there was "no linkbetween paraquat exposure and chronic fatigue syndrome", which it later affirmed.Such a decision is susceptible to review by an independent person who is to considerthe matter afresh on its substantive merits.2 Mr Morgan's review of the Corporation'sdecision was dismissed "on the balance of probabilities [his] employment tasks andenvironment did not cause or contribute to the cause of a personal injury".District Court decision(s)[5] Judge Henare dismissed Mr Morgan's appeal against the Corporation's reviewdecision. She concluded "the weight of the evidence shows that Mr Morgan's [chronicfatigue syndrome] has not been caused by pesticide exposure in the work place".3[6] The Judge identified it was for Mr Morgan to "prove he suffered a personalinjury and that the injury was linked to his work tasks".4 On appeal, Mr Morgan reliedalso on a Professor Murdoch, who attested such medical evidence as there was "do[es]not establish causation but show[s] exposure to toxic chemicals is a trigger to [chronicfatigue syndrome] in a small percentage of cases".5 The Judge found the issue –"whether [Mr Morgan] ha[d] suffered a physical injury and whether that was causedby his exposure" – was not established on the balance of probabilities.6[7] Judge G M Harrison refused leave to appeal Judge Henare's decision,observing "the medical evidence did not establish any physical injury generally [or]as a result of paraquat exposure at work":7No error of law has been identified and no question of law for submission tothe High Court has been formulated. At best, the application relies upon anerroneous factual finding by the Judge in that she should have found theapplicant to be suffering from [multiple chemical sensitivity] rather than[chronic fatigue syndrome]. For the reasons given, there was abundantevidence for her to find that the relevant condition was [chronic fatiguesyndrome]. Even if a finding had been made that [multiple chemicalsensitivity] was the relevant condition, there was still no evidence thatexposure to the pesticide would have caused that.2 Accident Compensation Act 2001 (the "Act"), s 145(1).3 Morgan v Accident Compensation Corporation, above n 1, at [67].4 At [24]–[27], with reference to s 30(2) of the Act.5 At [44].6 At [62] and [65].7 Morgan v Accident Compensation Corporation [2019] NZACC 54 at [17] and [21].Special leave to appeal[8] The scope of an appealable error of law is well-understood: it is the decisionbe "clearly insupportable" as a proper application of the law, whether by mistaking theapplicable law, disregarding relevant matters, considering irrelevancies, or otherwisebeing "clearly untenable".8[9] There is longstanding principle a second appeal for which special leave isrequired presents a high threshold, requiring demonstration of qualifying error ofmeaningful principle or substance on which there is a reasonable prospect of success,and the interests of justice require leave be granted.9 Articulations of the principle arelegion:10The Court will exercise this power if satisfied that there is a serious questionof law capable of bona fide and serious argument in a case involving someinterest, public or private, of sufficient importance to outweigh the cost anddelay of a further appeal. Other relevant considerations include the desirabilityof finality of litigation and the overall interests of justice. The primary focusis on whether the question of law is worthy of consideration.Discussion[10] Mr Morgan's counsel, Richard Pidgeon, says the qualifying error of law isJudge Henare's failure to consider multiple chemical sensitivity as the result ofMr Morgan's exposure to paraquat. In reliance on New Zealand Transport Agency vArchitectural Centre Inc, he says – presented with alternatives: chronic fatiguesyndrome or multiple chemical sensitivity – the Judge was bound to give bothadequate consideration.11 Such is important to those affected by chemicals in theirworkplace as to warrant further appellate consideration.8 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[28].9 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].10 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5], citing Knight v AccidentCompensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18]; ImpactManufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation HCWellington AP266/00, 6 July 2001; Khan v Accident Compensation Corporation HC AucklandCIV-2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corporation[2012] NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.11 New Zealand Transport Agency v Architectural Centre Inc [2015] NZHC 1991, (2015) 19 ELRNZ163 at [146]–[147].[11] However, New Zealand Transport Agency v Architectural Centre Inc does notstand for the proposition 'adequate consideration' is required as a matter of law to begiven to alternatives. Rather, on an appeal as to a question of law, the question is"whether the true and only reasonable conclusion contradicts the [Judge's]conclusion", such being "a very high hurdle".12[12] It is plain the proposed appeal here is not of a question of law at all, but of fact;a question "about what actually took place":13 whether the Judge should haveconcluded Mr Morgan's symptoms were better characterised as multiple chemicalsensitivity. Even if capable of serious argument in this case, that proposed questionalso is not important: the critical factor in the Judge's decision was the absence ofevidence of any physical injury to Mr Morgan, such being a necessary precondition tocover for personal injury. In those circumstances, finality of litigation now is desirable.[13] The Judge's decision is clearly supportable, as is obvious from the medicalevidence. It is very far from being untenable. There is no qualifying error.Result[14] The application for special leave to appeal is dismissed.Costs[15] In my preliminary view, as the successful parties, the Corporation is entitled to2B costs and disbursements.14 That is because, from what I presently know of it,nothing in the steps taken by it in this averagely complex proceeding required otherthan a normal amount of time.15[16] If that is not accepted by the parties, and they cannot otherwise agree, costs arereserved for determination on short memoranda of no more than five pages – annexing12 At [161]–[162], citing Bryson v Three Foot Six Ltd, above n 8, at [24]–[28].13 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 at [35], citedin Nixon v Walker HC Auckland CIV-2007-404-1372, 13 July 2007 at [25]; Shell (PetroleumMining) Co Ltd v Vector Gas Contracts Ltd [2014] NZHC 31 at [43]; and Commerce Commissionv Harmoney Limited [2017] NZHC 1167, (2017) 14 TCLR 572 at [30].14 High Court Rules 2016, rr 14.2(1)(a), (c) and (g).15 Rules 14.3(1) and 14.5(2).a single-page table setting out any contended allowable steps, time allocation, anddaily recovery rate – to be filed and served by the Corporation within ten working daysof the date of this judgment, with any response and reply to be filed within fiveworking day intervals after service.—Jagose J