Morgan v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT AUCKLAND I TE KOTI-A-ROHE KI TAMAKI MAKAURAU [2019] NZACC 54 ACR 52/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW BETWEEN JEREMY MORGAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Judgment: 17 May 2019 On the papers) RESERVED JUDGMENT OF JUDGE G M HARRISON 1] Mr Morgan applies for leave to appeal to the High Court on a question of law pursuant to s 162 of the Act against a decision of Judge Henare of 8 November 2018. 2] By minute of 5 December 2017, Judge J H Walker directed the filing of submissions by the parties by specified dates following which the application would be determined on the papers. Submissions have been duly filed and this decision follows. JEREMY MORGAN v ACCIDENT COMPENSATION CORPORATION Background [3] Mr Morgan lodged a claim with the corporation on 20 August 2014. He claimed suspected paraquat poisoning on 19 December 1997 some 17 years prior, used by him in contract spraying work. [4] The corporation originally declined the application. That decision was upheld on review and also confirmed by Judge Henare. Throughout that process, it was accepted that Mr Morgan was genuine in his evidence. [5] The issue arose from s 30 of the Act set out by the Judge in her decision. At [25] she said: It is apparent by s 30(2) that there are three requirements to satisfy, namely: [a] Mr Morgan's employment tasks or working environment had a property or characteristic which caused or contributed to a personal injury by gradual process, disease or infection; [b] The property or characteristic identified is not found to any material extent in the non-employment activities or environment of Mr Morgan; and [c] The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than those who do not perform that task in that environment. [6] No issue is taken with regard to that analysis. [7] There was extensive medical evidence. The first report was from Dr Monigatti, an occupational medicine specialist. This was followed by further evidence from Dr Ruttenberg, an occupational medicine specialist; Dr Black, an occupational specialist; Dr Beasley, a toxicologist and member of the Toxicology Panel; and the Toxicology Panel itself. [8] All of that evidence concluded that the chronic fatigue syndrome (CFS) of which Mr Morgan complained would not have been caused by his workplace exposure to paraquat. [9] On Mr Morgan's behalf, there was a report from Professor Murdoch which supported the likelihood of Mr Morgan's condition being caused by exposure to the poison. [10] The Judge dealt with it this way; [58] It is clear from the 2001 Act that in order for Mr Morgan to be entitled o cover, he must establish he has a physical injury. That, as Ms Becroft submitted, is a matter for the medical evidence. The Panel concluded there was no physiological basis to CFS, an opinion that was reiterated by Di's Monigatti, Ruttenberg and Black. The Court take [sic] into account the qualifications and experience of the expert physicians in toxicology on the Panel, including Dr Glass. [59] On behalf of Mr Morgan, much reliance is placed upon the report and opinion of Professor Murdoch who has expertise in the areas of CFS and MCS (multiple chemical sensitivity). His opinions are in sharp contrast to other's, particularly the well qualified group of physicians on the Panel. Ms Becroft submitted the Panel is well represented by a range of expert physicians who are better able to consider the specific gradual process criteria under s 30, than is a general practitioner. [60] Reference has been made in this judgment to information provided about MCS. The clear evidence is however that the relevant diagnosis is of CFS and not MCS. [11] At [64], the Judge says; The difficulty for Mr Morgan's case is that by his own evidence, Professor Murdoch accepts that "case reports do not establish causation", and toxic chemicals are a trigger to CFS on the available evidence. The Court accepts the reasoning of the Panel that Professor Murdoch did not adequately consider other potential causes; Even if he had been able to discount other "triggers" it would not have increased the likelihood that paraquat was responsible because the herbicide would still have to be capable of causing CFS, and this had not been shown. [12] Quite clearly therefore, the Judge was required to determine on the available evidence whether Mr Morgan was suffering from CFS or MCS, and her finding was the former. That is clearly a finding of fact. The Judge was then required to apply the provisions of's 30 to that finding and she determined that the facts, namely the medical opinion, did not support a causal link between exposure to the pesticide and his condition. The appeal [13] At paragraph 3 of his submission, Mr R S Pigeon, counsel for Mr Morgan, stated: It cannot be avoided, so is stated up front, the appeal sought to be run in the High Court (if leave is granted) departs significantly from the argument run before Her Honour Judge Henare - CFS is dropped completely. The necessary evidence as to MCS was before the Court, and the exclusive form proper consideration dismissal of MCS (see [60]) is a significant issue in this application for leave. [14] The essential point then pursued is that the Judge failed to consider on the evidence the existence of MCS as distinct from CFS and the possible link of that condition to exposure to pesticide. [15] In response to that submission, Mr Brownless for the corporation, identified the first ground on which leave to appeal was sought as follows: a. The District Court erred by not applying the relevant provisions of the 2001 Act to the applicant's diagnosis of MCS. The Court's reliance on CFS is a diagnosis to the exclusion of MCS constituted an error. [16] Mr Brownless then submitted that the Court's focus on CFS as the relevant diagnosis was a factual determination. In my view there is no doubt about that. He referred to [60] of the Judge's decision and submitted that it was supported by the medical evidence. [17] I accept that is the case. Mr Brownless went further and submitted that even if the Court had focussed on a diagnosis of MCS the outcome of the appeal would have been no different because; (a) The medical evidence did not establish any physical injury generally; and (b) The medical evidence did not establish any physical injury as a result of paraquat exposure at work. [18] I accept that submission also. The next grounds of appeal, b and c, fall away because they are reliant on the success of a. The final ground, d, complains of the failure to appoint an assessor, but, no application in that regard was made, nor any decision, and no question of law arises. Conclusion [19] It is trite law that "the contended point of law must be capable of bona fide and serious argument to qualify for the grant of leave".' [20] Furthermore: Care must be taken to avoid allowing issues of fact to be dressed up as questions of law.2 [21] No error of law has been identified, and no question of law for submission to the High Court has been formulated. At best, the application relies upon an erroneous factual finding by the Judge in that she should have found the applicant to be suffering from MCS rather than CFS. For the reasons given, there was abundant evidence for her to find that the relevant condition was CFS, Even if a finding had been made that MCS was the relevant condition, there was still no evidence that exposure to the pesticide would have caused that. [22] The application for leave to appeal to the High Court is consequently dismissed. [23] There is no issue as to costs. G M Harrison District Court Judge ' Impact Manufacturing unreported Doogue J, HC Wellington, AP 266/00, 6 July 2001. 2 Northland Co-Operative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 (CA).