M v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 1919

M v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 1919 [31 July 2018]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR PARTICULARS LIKELY TO LEAD TO IDENTIFICATIONOF APPLICANT.IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2017-485-946[2018] NZHC 1919BETWEEN MApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 1 March 2018 (further submissions received 8 March 2018,12 March 2018 and 16 March 2018)Appearances: T Mijatov for ApplicantH Evans for RespondentJudgment: 31 July 2018JUDGMENT OF GRICE J(Refusal of special leave to appeal decision of the District Court relating toaccident compensation claim)M's chronic pain[1] M has suffered chronic pain for some years.1 It dates back to hernia surgeriesintended to repair initially an inguinal hernia and subsequently a small femoral hernia.M lodged an accident compensation claim with the Corporation on 15 February 2010.This claim was based on the pain that M was then suffering as the consequence of asurgery for a right inguinal hernia. The claim was rejected on 24 February 2010 on1 The applicant's name, address, occupation and particulars that could lead to her identification havebeen suppressed pursuant to s 160(1) of the Accident Compensation Corporation Act 2001 (theAct).the basis it did not meet the criteria for a treatment injury, and no personal injury hadbeen identified. M was unsuccessful on a review of that decision. M unsuccessfullyappealed to the District Court in 2016.2 M then applied to the District Court for leaveto appeal that decision to the High Court. That was refused.3 M now seeks specialleave from the High Court to appeal against the 2016 decision of the District Court.4[2] In order to obtain special leave to appeal M must establish an arguable questionof law and identify a sufficient public interest, or matters at stake, to justify the secondappeal.5[3] The arguable question of law for consideration in dealing with this applicationis:Did the District Court consider and correctly determine the claim for cover forpost-surgical neuropathic pain following insertion of surgical mesh as agradual process treatment injury under s 20(2)(f) of the AccidentCompensation Act 2001.[4] The application for special leave was filed out of time. An application forextension of time to file the application was made orally. I refuse that extension dueto the relevant wording of the appeal provisions.6 This Court, accordingly, does nothave jurisdiction to hear this matter.[5] If I am wrong, I also find M has failed to establish the grounds required for aspecial appeal. I am of the view that the findings M wishes to appeal are factualfindings rather than legal ones. Therefore, special leave would have been refused inany case.[6] I will now consider the relevant parts of the District Court judgment.2 M v Accident Compensation Corporation [2016] NZACC 182 [Substantive appeal decision].3 M v Accident Compensation Corporation [2017] NZACC 126 [Leave decision].4 Substantive appeal decision, above n 2.5 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].6 Accident Compensation Act 2001.Background and procedural history[7] M had surgery to repair a right inguinal hernia in 2008. M was informed ofthe benefits and risks of the surgery. After the surgery, the discharge note disclosedno complications. Almost a month after the surgery M's surgeon noted that M hadpain and numbness in the lower abdomen, but this had improved and within 3 weeksM was back at work. In M's second assessment a few months later, the surgeonrecorded that M had pain in the right groin that radiated toward the right iliac crestthat got worse throughout the day. The surgeon noted this pain was unlikely to becaused by trapped nerves. A month later, the surgeon undertook a further review ofM. He did not find any abnormalities on M's CT scan. He noted that M was feelingmuch better on new painkillers. The surgeon then believed M's pain was from anotherhernia that had been discovered.[8] In late 2008 M had that femoral hernia repaired. The surgeon noted in a letterto M's GP in early 2009 that he thought a nerve might be entrapped, but he found itodd that M didn't have tenderness near the scar.[9] The pain monitoring and updating continued throughout 2009, with thesurgeon noting that he was disappointed that M continued to have pain.[10] M lodged a claim with ACC in early 2010 for ongoing pain symptomsfollowing M's surgery. This was rejected on the basis M did not meet the criteria fortreatment injury. The report that accompanied the decision said that the pain had notidentified as being related to a 'personal injury' as the surgery was without issue andthe pain had not been pin pointed to a cause.[11] M sought a review of the Corporation's decision which was dismissed.Following this dismissal, M appealed to the District Court under s 149 of the Act.The substantive District Court judgment[12] The Judge in the District Court appeal noted that, in the circumstances, for Mto receive accident compensation the injury must meet the test set out in s 32(1) of theAccident Compensation Act 2001 (the Act) which provides:32 Treatment injury(1) Treatment injury means personal injury that is—(a) suffered by a person—(i) seeking treatment from 1 or more registered healthprofessionals;(iii) referred to in subsection (7); and(b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of thetreatment, taking into account all the circumstances of thetreatment, including—(i) the person's underlying health condition at the time ofthe treatment; and(ii) the clinical knowledge at the time of the treatment.[13] The Judge explained that a "personal injury" for the purposes of s 32(1) isdefined in s 26 of the Act. Of the different categories of "personal injury" listed inthat section only s 26(1)(b) fitted this case. It provides:(b) Physical injury suffered by a person, including, for example, a strainor a sprain [14] Therefore, the Judge said the issue must be whether M can show the pain arosebecause of a "personal injury" that was caused by her treatment but was not anecessary or ordinary part of her treatment.[15] In the alternative, Counsel for M argued that M was suffering from a "personalinjurycaused wholly or substantially by a gradual process, disease, or infection thatis a treatment injury" under s 20(2)(f). The argument was that even if the cutting ofthe nerves was a necessary part or ordinary consequence of the surgery, the pain fromthe gradual process of the nerves abnormal regrowth was not an ordinary or necessaryconsequence of the surgery. The Judge sets out the case for M in this regard asfollows:77 Substantive appeal decision, above n 2, [7] – [10].[10] In the alternative to submission [M] was entitled to cover for atreatment injury, Mr Forster also submitted that [M] was entitled to coverunder s 20(2)(f) of the Act, being a "gradual process that is treatmentinjury" suffered by a person. In this regard it was Mr Forster's submissionthat even if the initial physical injury to the nerves resulting from the openoperation respect of the inguinal hernia repair was a necessary part or ordinaryconsequence of the surgery, the pain resulting from the gradual process as thenerves have re-grown in an abnormal fashion "is not a necessary or ordinaryconsequence and therefore cover is available for this" because "it is thetreatment injury for which cover is sought and there is no need for the physicalinjury itself to be covered".[16] The Judge concluded that this argument could not succeed. Section 20(2)(f)of the Act was designed to address situations where a gradual process has arisen froma treatment injury, rather than the section giving rise to a new form of treatment injury.The Judge said that first there must be a treatment injury under s 32 of the Actestablished, and only then will the gradual process caused by that treatment injury becovered.[17] After dealing with the history of pain suffered by M the Judge turned to thefirst question under s 32 of the Act: could the inguinal hernia repair give rise to atreatment injury considering that the physical damage (ie the cutting of the nerves)was a necessary part or ordinary consequence of the procedure? The Judge noted thatwhether M gave informed consent was key to this limb.[18] The Judge was satisfied there was informed consent to the surgery, and thatany cutting of the nerves was a necessary part of the operation.8 Therefore, the processof nerve regrowth after being cut was an ordinary consequence of the surgery that tookplace. He found that there could be no treatment injury in terms of s 32(1) of the Act.M failed on this limb.[19] The Judge then turned to the second question: were M's pain symptoms causedby the treatment received or any other physical injury?[20] The Judge notes that even if he was wrong in his conclusion on the firstquestion, he was also satisfied that M's pain symptoms were not causally linked to the8 M does not appeal the finding in relation to informed consent nor the finding that cutting nerveswas an ordinary consequence of the hernia operation/s.surgery. A report was provided to the Court by Dr Anderson on behalf of M. TheJudge did not accept Dr Anderson's evidence as to the type of nerve injury advancednor that it was caused by the surgery.[21] While the surgery did involve cutting a number of nerves, the Judge foundthere was no physical evidence to support a nerve injury of the kind Dr Andersonadvocated for and the explanation the doctor gave. Dr Anderson did not explain whythe descriptions and reports to different clinicians of M's pain and symptoms variedso significantly in the years since the surgery took place. The Judge preferred theevidence of the other medical specialists who provide reports, including that of thesurgeon who carried out the inguinal hernia surgery, to the evidence of Dr Anderson.[22] The Judge noted that two main points convinced him that Dr Anderson's reportwas insufficient. First, there was no explanation for the changing descriptions of painreported by M. Secondly, the actual injury causing the pain was not identified in hisreport. The Judge said:9[52] In particular, against a background where there is no physicalevidence to support a nerve injury of the type posited by Dr Anderson, hisconclusions with regard to causation do not adequately explain or reconcilethe symptoms experienced by M as recorded by other clinicians in the yearssince the surgery took place. First, it is clear Dr Anderson reaches hisconclusions on causation on the basis of consistent pain symptomsexperienced by M in the aftermath of the inguinal hernia repair "pain in theright groin radiating into the inner aspect of the right thigh", when as thefactual background section shows, the symptoms were in fact anything butconsistent. For example:(a) July 2008 – Mr Phang recorded M suffering from lowerabdominal/upper abdominal pain and pain in the right groin (see [15]above).(b) October 2008 – Mr Phang observed "right groin pain that radiatestowards her right iliac crest" (see [16] above).(c) January 2009 – Mr Phang recorded pain in M's groin "centred aroundthe internal ring region radiating not only medially towards thesuprapubic region but also laterally towards the anterior superior iliacspine" with a "painful spot just lateral to the anterior superior iliacspine" (see [21] above).(d) March 2009 – Mr Phang recorded "the pain around [M's] right groinhas settled" but if she did not take Amitriptyline "she would have9 Substantive appeal decision, above n 2, at [52].more pain in her right anterior superior iliac spine region" (see [22]above).(e) May 2009 – Mr Phang recorded that M's pain was "intermittentnowadays" with some pain felt "towards the end of the scar ie overthe right pubic turbecia region", with "the main pain and discomfortarising laterally, posterior and lateral to the [anterior superior iliacspine] and radiating down the lateral aspect of her thigh" (see [23]above).(f) October 2009 – Mr Phang recorded that M was "quite clear that sheno longer has pain in the right groin and this resolved several monthsago" but she was experiencing "ongoing pain in her lower backaround the back and lateral aspect of the right hip and this pain alsoradiates down the back of her right thigh" (see [24] above).(g) February 2010 – Dr Shepherd recorded in the treatment injury claimform "pain radiating from back to buttock, thigh and groin – R side"(see [26] above).(h) July 2010 – Mr Bowker noted M experiencing pain "though theinguinal region, with some radiation more laterally, as well as downinto the anteromedial right thigh and down the right buttock andpostural lateral aspect of the upper thigh" (see [27] above).(i) 26 July 2010 – Mr Bowker observed after the second femoral herniarepair that "the 'referred' pain in the right sacroiliac/hip area isunchanged, but pains that were felt over the right pubic region andanteromedial area of the right thigh have gone" (see [29] above).(j) October 2010 – Mr Bowker indicated that M "continues to experienceneurogenic pain extending around the buttock area, hip and onto theright thigh" (see [31] above).(k) November 2010 – Dr Hill noted on examination that M's "pain islocated in the region of the lateral right iliac fossa and radiates intothe right groin and into the lateral and medial right thigh as far as theknee" (see [32] above).(l) April 2011 – Dr Kibblewhite recorded following the examinationcarried out at TARPS "right flank to right thigh [pain] remains" (see[35] above).(m) September 2014 – Dr Anderson recorded "pain in the right groinradiating into the inner aspect of the right thigh" (see [37] above).[23] Dr Anderson was unable to explain the inconsistency and variation in thereports. The Judge says:10[53] As Mr Evans for the Corporation submitted, these significant changesin symptoms and presentation over the six years following the inguinal hernia10 At [53].repair surgery were simply not explained by Dr Anderson. This lack ofexplanation or even engagement with the observations of the other cliniciansseverely undermines the weight that can be given Dr Anderson's conclusionsand in consequence M's claim that the pain symptoms are a consequence of aspecific injury having been suffered as a result of the surgery.[54] In reply, Mr Forster suggested that the changes in presentation couldbe explained by the fact that M was suffered referred pain and also suggestedthat some form of changes in the presentation could have been due to theeffects of the Amitriptyline prescribed to M by Mr Phang. With respect toMr Forster, neither explanation is able to assist M. First, while referred painis well understood in this jurisdiction, there is no evidence produced to providean explanation as to how a discrete injury could have resulted in the changesin presentation of symptoms observed. Likewise, the use of Amitriptylinecannot provide an overall explanation for the changes in symptomsexperienced by M. Specifically, changes and indeed improvements insymptoms did not change when M ceased taking Amitriptyline and there is inany event no medical evidence to support Mr Forster's submission.[55] In any event, upon close analysis it is clear that Dr Anderson is alsoless than specific about what the actual injury said to be causing M's painsymptoms actually was. In particular, in his analysis, in answer to thequestions posed by counsel, Dr Anderson talked merely about "physiologicaldamage to [M's] nerve" without identifying which nerve was damaged orindeed if more than one nerve had been damaged. In this regard it is clear thatDr Anderson placed some considerable weight on M's advice to him that MrBowker had advised her that her "nerves were a mess". As Mr Evans noted,this advice is in fact quite inconsistent with Mr Bowker's written reportswhich noted, following the second femoral hernia repair, only that: the divided ilioinguinal nerve was identified at the lateral edge of themesh. It was dissected back, divided again and the end placed within themuscle fibres of external oblique. The genital branch of thegenitofemoral nerve appeared intact. The femoral branch was notidentified with certainty.[24] The Judge therefore concluded that his findings on both questions meant thatthe appeal must be dismissed.Application for leave to appeal to the High Court made to the District Court infirst instance[25] M applied to the District Court for leave to appeal to the High Court unders 162 of the Act.11 The District Court Judge hearing that application concluded theissues raised on appeal by M were no more than disputed facts and the appeal did notraise an issue of public importance. As he put it, the appeal was about whether11 Leave decision, above n 3.laparoscopic surgery undertaken to repair a hernia was causing pain identified twoyears later. He said this was a factual question.[26] The Judge dealt with each of the grounds of appeal raised in the application forleave to appeal. He considered each was insufficient. These included the first groundnot now pursued. This related to whether the civil standard of proof had been appliedcorrectly. The Judge concluded it had been.[27] The second ground was whether the Judge had considered and correctlydetermined the claim for cover for gradual process injury. He considered this wasdealt with appropriately as no treatment injury was established under s 32 of the Act.[28] Finally, the Judge considered whether the decision under appeal showed anerror of law in its rejection of the evidence of Dr Anderson. Again, he concluded therewas no error as there was extensive reasoning set in the appeal decision supportingthat conclusion. This fulfilled the Court's obligation to resolve the conflict of expertevidence.[29] Therefore, the District Court determined that there was no question of law forwhich leave should be given to appeal to the High Court. The application for leavewas dismissed.Standard of special leave to appeal under s 162(3)[30] In order for special leave to be granted under s 162(3) of the Act, the appealmust raise a question of law. In fact, the Court must be satisfied that the question oflaw reaches the threshold required to justify allowing a further appeal to the HighCourt.12 It can be said that a question of law properly arises in the followingcircumstances:13A question of law does not arise where the Court has merely applied law,which it has correctly understood, to the facts of an individual case. Providedthat the Court has not overlooked any relevant matter or taken account of somematter which is irrelevant to the proper application of the law, the conclusionis for the fact-finding Court unless clearly unsupportable. Whether or not a12 Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [5].13 At [28].statutory provision has been properly construed or interpreted and applied tothe facts is a question of law. However, issues of fact should not be dressedup as questions of law. That said, a mixed question of law and fact is a matterof law.(Footnotes omitted)[31] Justice Collins in W succinctly put it as follows:14[32] Appeals from decisions of the District Court to the High Court underthe Act are confined to questions of law. An appeal on a question of lawcannot succeed where the Court below has applied the correct law to the factsof an individual case. "An ultimate conclusion of a fact-finding body cansometimes however be so insupportable – so clearly untenable – as to be leftto amount to an error of law". That rare circumstance may arise where thereis no evidence to support the determination under appeal, or where " theevidence is inconsistent with and contradictory of the determination" or where" the true and only reasonable conclusion contradicts the determination".(Footnotes omitted)[32] The principles that apply to an application for special leave are set out inKenyon v Accident Compensation Corporation as follows:15(a) The purpose of requiring leave for certain appeals is to ensure thatscarce judicial time is allocated sensibly: Sandie v Stewart [1982) 1NZLR 708 (CA)(b) Although it is ultimately a matter for the discretion of the Court, it willnormally be necessary to show that there is an issue of [principle] atstake or that a considerable amount hinges on the decision, and thatthere is a reasonable prospect of success: Sandle; Manawatu Co-opDaily Company Limited v Lawry [1988] DCR 509; Brown vChowmein Fashions Limited (1993) 7 PRNZ 43(c) The fact that special leave is required is significant and suggests thatleave ought not to be granted as a matter of course: O'Loughlin vHealing Industries Limited (1990) PRNZ 464(d) It is for the Applicant to show that leave is required in the interests ofjustice: Avely v No. 2 Public Service Appeal Board [1973] 2 NZLR86 (CA)(e) As leave has already been refused by the District Court, however,there will normally have to be some extraordinary factor which has notbeen properly taken into account: Brown v Chowmein Fashions Limited(supra).14 W v Accident Compensation Corporation [2018] NZHC 93 at [32].15 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].[33] The Court must be satisfied that there is a serious question of law capable ofbona fide and serious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of a further appeal.16[34] The question is, has the applicant identified an error of law that has a realprospect of success and is a matter of sufficient public or private importance as tojustify a second appeal?Grounds for special leave to appeal[35] Mr Mijatov for M applies for special leave to appeal on the grounds the DistrictCourt erred in its determination. The only question of law M raises is:Did the District Court consider and correctly determine the claim for cover forpost-surgical neuropathic pain following insertion of surgical mesh as agradual process treatment injury under s 20(2)(f) of the AccidentCompensation Act 2001.17[36] M submitted that an adverse finding regarding the existence of a "treatmentinjury" under a different limb the legislation does not preclude consideration ofs 20(2)(f) in order to provide cover. She submits the Judge's interpretation ofs 20(2)(f) is wrong in law, because it focussed on the "treatment injury" element ofcover. It neglected to read the paragraph in the context of s 20 and in a mannerconsistent with s 26(1) and (2). In addition, the submission is that, interpretation isinconsistent with the Supreme Court's decision in Allenby.18[37] The test that M puts forward as the correct test has two steps:(a) There must be a gradual process\disease\infection; and(b) That gradual process\disease\infection must be a treatment injury.[38] Counsel said that the District Court should have:16 Cullen v Accident Compensation Corporation, above n 5, at [5].17 Application for special leave to appeal to the High Court dated 2 November 2017.18 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.(a) Looked at whether there was a personal injury under s 26(1). Thepersonal injury was the abnormal growth of cut nerves; and(b) Asked if there was a "gradual process". This was the abnormalregrowth of cut nerves; and(c) Asked, whether that gradual process was a "treatment injury" unders 32 of the Act. This entailed consideration of whether the abnormalregrowth was an ordinary consequence of the surgery.[39] M says a two-step process was used in Allenby.19 First a personal injury mustbe found, and second, the injury must be caused in one of the ways specified in s 20(2).[40] The Supreme Court case in Allenby was considering whether a woman whohad become pregnant following a failed sterilisation suffered personal injury bymedical misadventure for the purposes of the Act. The Supreme Court found she wasentitled to cover. M submits the test applied by the District Court in this case wasinconsistent with comments in the Supreme Court made in that case. In Allenby thecover was established under another provision but it considered cover under availableunder s 20(2)(f).[41] Elias CJ in Allenby summarised the approach as follows:20[23] There is also, I think cover for personal injuries due to the gradualprocess of pregnancy through s 20(2)(f). In that provision, the personal injurywhich is the subject of cover is caused by "a gradual process, disease, orinfection that is personal injury caused by medical misadventure suffered bythe person". Impregnation or conception strikes me as exactly such personalinjury. It has immediate physical impact but it also constitutes a process whichitself has consequential physical impact properly characterised, for the reasonsdiscussed in [18]–[19], as physical injuries for the purposes of the definitionof personal injury.[24] While there is some awkwardness in the references both to the"personal injury" for which cover is provided by s 20(2)(f) and (g) and thecausative "gradual process ... that is personal injury caused by medicalmisadventure suffered by the person" or the causative "gradual process ...consequential on personal injury for which the person has cover", the meaningis clearly intended to be expansive in relation to the consequences of the19 At [59].20 At [23] – [24].original personal injury, whether caused by medical misadventure or in someother way that is covered under the Act. If linked by "gradual process" or"disease" or "infection" to the original personal injury, subsequent personalinjury is covered.[42] Blanchard, McGrath and William John JJ put it:21[64] Returning again to s 20(2), it seems that a distinction must be intendedas between para (b):"Personal injury caused by medical misadventure suffered by theperson".And para (f):"Personal injury caused by a gradual process, disease, or infection that ispersonal injury caused by medical misadventure suffered by the person".In the first situation, in para (b), there must be a medical misadventure, that is,for our purposes, a medical error; and it must give rise to a physical injury.The Solicitor-General gave the example of the surgeon having amputated thewrong (good) leg of the claimant patient.[65] In the second situation, in para (f), the personal injury must both (a)be caused by medical misadventure and (b) it must also take the form of agradual process, disease or infection. The Solicitor-General suggested theexample of gangrene consequent upon the amputation of the wrong leg. Thegangrene could in this example be regarded as a personal injury because itwould not have been suffered but for the severing of the leg. So it would alsofit within para (g). The gangrene is certainly a disease or infection but, aswell, it would seem to come within the term "gradual process." The Solicitor-General was, however, also helpfully able to supply an example of a gradualprocess which would not also be termed either a disease or an infection – anadhesion caused by excessive (negligent) radiation treatment. There is littledifficulty in accepting that this would be a personal injury.[43] M in her submissions quotes the above paragraph in Allenby as follows:[65] the personal injury must both: (a) be medical misadventure [now,treatment injury]; and (b) it must also take the form of a gradual process,disease or infection.[44] The quote when not modified as it has been in the above paragraph reads:[65] the personal injury must both: (a) be caused by medicalmisadventure; and (b) it must also take the form of a gradual process, diseaseor infection (Emphasis added)21 At [64] – [65].[45] A comparison of the version of s 20(2)(f) as it was when considered in Allenbywith the provision in force at the time relevant to this case must be made. Section20(2) was amended in 2005 by replacing the phrase "medical misadventure" with"treatment injury" and consequential amendments.[46] The Allenby s 20(2)(f) reads:(f) personal injury caused by a gradual process, disease or infection thatis personal injury caused by medical misadventure suffered by theperson.[47] The s 20(2)(f) relevant to this case reads:(f) personal injury caused by a gradual process, disease, or infection thatis treatment injury suffered by the person:[48] In turn "treatment injury" is defined (insofar as is relevant here) as "personalinjury caused by treatment".22[49] For the present purposes, the changes to s 20(2)(f) are not relevant. TheSupreme Court's comments apply equally in this case. A treatment injury was aprerequisite to establishing cover. As a matter of fact, the Judge here found there was"no treatment injury" even if M's argument was legally correct. He found neither thesurgery, nor the pain, nor the damage to M's nerves were treatment injuries.23[50] To succeed, M's analysis relies on a factual finding that there was abnormalgrowth of cut nerves which was a treatment injury. The District Court Judge rejectedthis finding on the basis of insufficient evidence. He undertook a careful analysis ofthe evidence in making these findings as I have outlined above. He preferred theevidence of the other medical experts to that of Dr Anderson who was advancing M'sargument. There was sufficient evidence for the Judge to reach his conclusions. Thosefactual findings were not nor should they be contested in this application.[51] Therefore, I am of the view that the District Court Judge has not made an errorof law. While it is possible to take parts of the Judge's decision in isolation to argue22 Definition from s 32 of the Act. See above, [12].23 Substantive appeal decision, above n 2, at [7] – [10].he failed to consider whether a treatment injury could be a gradual process it is clearthat the Judge considered this and rejected it on the facts.24 When viewed as a wholethe Judge did not overlook any relevant matter nor take into account some matterwhich was irrelevant to the proper application of the law. The statutory provisionshave been correctly construed and interpreted and applied to the facts. The appeal isin reality an appeal against factual findings made.Relevance of Corporation not making its original decision on "gradual processinjury"[52] The Corporation as its primary submission said that in M's original applicationfor cover the Corporation was not asked to consider whether there was a "gradualprocess injury". It was only asked to decide if M had "a treatment injury". Therefore,it submitted, this Court did not have the jurisdiction to consider the "gradual process"question on appeal. That question was never dealt with by the Corporation.[53] Section 162 of the Accident Compensation Act which deals with appeals to theHigh Court does not refer to the original decision by a Corporation. It is concernedwith the decision of the District Court. The District Court Judge here has expresslymade a finding on s 20(2)(f) of the Act which relates to gradual process injury. I amof the view this Court has jurisdiction to consider the matter, regardless of whether theCorporation dealt with it squarely or not.25Is this a matter of sufficient public or private importance to justify a secondappeal?[54] M must establish that there is sufficient public interest or matters at stake tojustify an appeal.26 M argues that there are serious consequences for her if thisapplication for special leave to appeal is not granted. The argument is that there issignificant public interest in the matter because it relates to the correct test to beapplied in claims for treatment injury involving surgical mesh. In fact, the case didnot focus to any great extent on the surgical mesh involvement. It is a factual matterwhether or not M suffered a treatment injury. The matter is of course important to M24 At [56].25 At [13].26 Cullen v Accident Compensation Corporation, above n 5, at [5].as it affects her ability to receive compensation. However, that is not unusual in sucha case.[55] I do not consider that there is sufficient public interest or matters at stake tojustify an appeal. There is no issue of principle at stake nor is there a reasonablechance of success.Application for special leave to appeal – filed out of time[56] The application for special leave to appeal was filed out of time. The Act ats 162 makes provision for appeal to the High Court on a question of law only asfollows:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of theDistrict Court as being wrong in law may, with the leave of the DistrictCourt, appeal to the High Court.(2) The leave of the District Court must be sought within 21 days afterthe District Court's decision.(3) If the District Court refuses to grant leave, the High Court may grantspecial leave to appeal.(4) The special leave of the High Court must be sought within 21 daysafter the District Court refused leave.(5) The High Court Rules 2016 and sections 126 to 130 of the DistrictCourt Act 2016, with all necessary modifications, apply to an appealunder this section as if it were an appeal under section 124 of that Act.(Emphasis added)[57] The District Court decision dismissing M's application for leave to appeal wasdelivered on 12 October 2017.27 M's application for special leave should have beenfiled in the High Court at Wellington on or before 5 pm on 2 November 2017. It wasnot.[58] It appears that the notice for leave to appeal was emailed to the WellingtonHigh Court registry on 2 November 2017 but was not accepted for filing on the basis27 Leave decision, above n 3.it did not comply with the High Court Rules.28 The notice was couriered to the HighCourt. It is not clear when the notice the arrived in the Wellington High Courtregistry.29 It appears the solicitors were in Dunedin but chose to file in Wellingtonrather than Dunedin. Nevertheless, it was common ground that the notice was filedoutside the time allowed.30[59] Mr Mijatov acting for M appropriately raised the issue and sought an extensionof time for filing.[60] The issue I must now deal with is whether time for filing the notice ofapplication for special leave to appeal can and or should be extended in thecircumstances.[61] The case law points to the position that no extension of time may be grantedby this Court for the filing of the application for special leave to appeal.[62] Mr Mijatov submitted that a more flexible approach to allowing extensions oftime should be taken in view of recent decisions. In particular he pointed to the recentSupreme Court authority in Almond v Read.31 The Supreme Court in that caseindicated that where someone has a right to bring an appeal, the appeal must generallybe heard on its merits. It commented this was an important background against whichextension applications must be determined.32 The Supreme Court went onto commentthat where a litigant attempts to exercise the right of appeal within the required timeframe that misses the time limit by a day or two then a grant of an extension should bereadily made.[63] However, in Almond the Supreme Court was considering an application for anextension of time when the applicant was entitled to make that application pursuant to28 Rule 5.6 of the High Court Rules 2016 provides that a signed document must bear an originalsignature. Here, the notice of appeal was not accepted for filing because the emailed notice didnot bear an original signature as required.29 The applicant says it was on 3 November 2017. The respondent says 6 November 2017. There isno evidence on the point. However, it is not material for present purposes.30 The Electronic Transactions Act 2002, s 22(2) does not apply here. It allows for electronicsignatures if certain conditions are met.31 Almond v Read [2017] NZSC 80; [2017] 1 NZLR 801.32 At [36].r 29A of the Court of Appeal (Civil) Rules 2005. That provision expressly permits anextension of time to be granted where the other party consents to that extension or ifthere is no consent the party is entitled to make an application. The Supreme Court inthat case also noted that in most civil cases in New Zealand there is a right to a firstappeal.33[64] In this case the statutory wording is mandatory. Under s 162 of the Act, theapplication "must" be made within the time prescribed. That requirement isfundamentally different to the provision considered in Almond. In addition, this caseis dealing with a second right of appeal, rather than a right to a first appeal as wasbeing dealt with in Almond. M has already had one appeal to the District Court. Thefactors taken into account in Almond do not have application here.[65] M also argued that ACC had acquiesced or waived in the late filing. Counselsubmitted that ACC was aware of the oversight in filing some time ago. Counsel forACC has not expressly waived the statutory period for filing. It submits it cannotwaive it because the filing time is a mandatory statutory period of 21 days. Waiver oracquiescence by the other party cannot confer jurisdiction by consent. I agree withthat submission.[66] The cases referred to in support of M's argument for waiver included Jones.34This case did not hold that waiver would or might operate to allow an extension of thestatutory time limit. The Court merely commented that "waiver was entirely a matterfor the Corporation".35 However the Court did not make a determination on that point.[67] In Armstrong Ellis J said:36[16] I have come to the same conclusion in relation to s 162(4). I considerthat compliance with the time limit contained in that provision cannot bewaived for the reasons that follow.33 At [36].34 Jones v ACC [2016] NZHC 973.35 At [11].36 Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-0860, 5September 2011.[18] In particular it seems to me that the absence of any right to appeal, thefact that the applicant will already have been afforded one appeal and therelatively high threshold for obtaining special leave all point in favour of aprovision such as s 162(4) being interpreted in a way that does not permitwaiver of the time limit.[19] Secondly, it is significant that the Act in which s 162 appears containsother provisions which expressly contemplate or permit the waiving ofspecified time limits.[22] And lastly, the public interest considerations discussed byGlazebrook J in ([122] and [123]) of Howard are, I think, amplified in thecontext of ACC litigation. Not only is there the cost to the public of litigationgenerally that was noted by Her Honour but a specific additional public costwhere a Crown entity such (sic) ACC is a litigant. As in the Howard caseitself, the time limits cannot therefore be said merely to exist for privatebenefit.[23] My conclusion as to my absence of jurisdiction is of course sufficientto dispose of Mr Armstrong's application for special leave [68] Previous decisions indicate that unless the statute in question permits anextension of time or does not limit the time prescribed for making an application, afailure to comply with the mandatory time period is fatal.37 ACC has no power towaive that mandatory time limit. In Howard the Court of Appeal noted that the timeframes under the Human Rights Act 1993 for filing and service a notice of appeal weremandatory and could not be extended by the Courts unless the statute expresslyprovides that discretion.38 That legislation provided a similar statutory timeframe tothat under consideration here. Glazebrook J said:[100] As the timeframes for filing and service are set out in the HRA, theyare mandatory. They cannot be extended by the Court as there isnothing in the HRA authorising such an extension [105] No extensions of time for appealing are possible under 704(3), ass 123 limits the time for appealing and there is no provision permittingan extension. [69] As the relevant mandatory time limit for the lodging of the notice are statutoryit would be inappropriate for the Court to exercise its inherent powers to override the37 See Wyman v Accident Compensation Corporation of New Zealand HC Wellington CIV-2007-485-451, 23 May 2007 per Simon France J at [7]: " if the statutory scheme has its own timelimits, they prevail". Of similar effect Armstrong v Accident Compensation Corporation, aboven 41, at [16] – [23].38 Attorney-General v Howard [2010] NZCA 58, [1011] 1 NZLR 58.statute. The case law is clear on the mandatory nature of the time limit and the lackof any ability by the Court to extend time. The Court's inherent jurisdiction shouldnot be used to circumvent those requirements.[70] Accordingly, the application for an extension of time to file the application forspecial leave to appeal must fail. I dismiss that application.Conclusion[71] Accordingly, I dismiss the application for special leave to appeal, for thefollowing reasons:(a) The application was filed out of time and time cannot be extended; thereis no jurisdiction to hear M's application, and(b) If I am wrong, the proposed grounds of appeal do not raise an error oflaw.Costs[72] Counsel did not address me on costs. If the parties seek consideration of thatissue or any other matter, leave is reserved to file submissions by the respondent on orbefore seven days from the date of delivery of this judgment and in reply by theapplicant with seven days from receipt of the respondent's submissions._________________Grice JSolicitors:Young Hunter, Christchurch