Corby v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 78/2006 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 28/04) BETWEEN MARGARET CORBY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 14 February 2006 Appearances: Megan Williams advocate for appellant Alison Douglass for respondent Judgment: 4 April 2006 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This in an application to reinstate an appeal after a notice withdrawing the appeal given by the solicitor acting for the appellant. [2] In Miller v ACC (251/96) and Cortesi v ACC (92/03), it was held in this Court that abandonment of an appeal is equivalent to dismissal with the result that the appellant’s rights have been extinguished. Those cases Court applied the observations of Tipping J in Simpson v Police (High Court, Christchurch, AP228/90, 10 December 1990). That principle was applied again in this Court in Franklin v ACC (102/03). [3] Ms Douglass for the respondent submitted that once an appeal has been abandoned, the Court will not grant leave to reinstate it. The only circumstance in which the appeal can be revived is where the appellant did not intend to abandon the appeal so that the abandonment should be set aside. [4] In this case the appellant instructed her solicitors to abandon the appeal, after she received advice from them concerning the chance of success and the cost of representation. After seeking other advice, she changed her mind and applied to have the appeal reinstated. [5] Full argument has not been heard concerning the power of the Court to reinstate the appeal, beyond the acknowledgement by the respondent that the abandonment may be examined to decide whether it was voluntary. [6] I am not aware of any authority permitting reconsideration of an appeal voluntarily abandoned. There is nothing in the rules that would assist the proposed appellant. It is possible that the application could still be approached either through the Court’s inherent power to regulate its own proceedings, or by way of application for leave to appeal out of time. There are reported cases in other jurisdictions in which deemed abandonment of an appeal has occurred through failure to take a required step, and the matter has been reconsidered as an application for leave to appeal out of time. In those cases, the appellant did not intend to abandon the appeal in the first place. [7] There would be few cases in which the Court could intervene under its of residual jurisdiction. Perhaps it could occur in a case of clear unfairness, but it would be unlikely that a claimant with a clear claim for cover or entitlements would voluntarily abandon an appeal except in the case of a mistake, including a mistake caused by accepting incorrect advice. [8] After reviewing the evidence, I have decided that this appeal does not call for consideration of the question whether a claimant could obtain relief by leave to appeal out of time after abandoning an appeal in reliance on wrong advice from a professional advisor. The usual recourse in such a situation would be to claim for damages in negligence. Of course that is a very unsatisfactory answer for the claimant, but it accords with the principle of finality in proceedings between the original parties. The argument for finality may be less compelling where the other party is a state corporation with obligations to assist injured persons. [9] In this case, I find that the abandonment was voluntary, both from the point of view that the appellant did intend to withdraw the appeal, and from the point of view that she was properly informed. The appeal proceedings [10] A notice of appeal from a review decision was received by the Registry on 12 January 2004. Then, on 21 April 2004, the solicitors for the appellant, Messrs Gresson Grayson and Calver, notified the court that they were instructed to withdraw the appeal. A notice of withdrawal of the appeal was enclosed with the letter, signed by counsel for the appellant. [11] On 17 May 2004 the Registry was notified by email that Mrs Williams had been consulted as an advocate for the appellant. On 21 May 2004, Mrs Williams wrote to the Registry setting out the reason why the appellant had withdrawn her appeal, and requesting that the appeal be reinstated. [12] In a decision of 8 September 2004, Judge Cadenhead in this Court recorded that the reason initially advanced why the appeal should be reinstated was that, when the appellant was told she was unable to obtain legal aid, her lawyer wrote to the registry asking for the case to be withdrawn. Judge Cadenhead directed that the appellant make a formal application supported by affidavits from the appellant and the former solicitor, so that the Court could adequately assess the context in which the withdrawal was made. The information was furnished by letters from the solicitors and eventually neither party requested that affidavits be filed. [13] Mr Calver wrote, in Mr Grayson’s absence on sabbatical leave, stating that the firm had filed the appeal in January to protect the position until Mr Grayson returned. Mr Grayson met with Mr and Mrs Corby on 11 February 2004 after spending some time looking at the evidence and the issues. He advised Mrs Corby that he did not believe that she would succeed on an appeal. After checking the ACC file, and he wrote to Mrs Corby on 16 March 2004 again confirming his advice that the appeal was unlikely to succeed. He indicated that the cost of proceeding with an appeal was likely to be over $3,000, and he would be reluctant to suggest that Mrs Corby commit herself to that cost without good prospects of success. [14] Mr Calver said that Mrs Corby then telephoned the firm on 20 April 2004 and instructed them to withdraw the appeal. Mr Calver understood the appeal was withdrawn on the basis of Mr Grayson’s advice that the prospects of success were very slim. [15] The Court sighted a letter of 4 February 2004 from Mr Grayson to Mrs Corby noting that he had spoken to Mrs Corby by telephone and had read the material that had been left with Mr Calver. Mr Grayson noted some points relevant to the chance of success of the appeal and said that he would obtain further documents. He notified Mrs Corby that the costs of an appeal are usually about $3,000, and that it seemed that she would not qualify for legal aid. [16] Mr Grayson wrote on 2 November 2005 explaining that he had advised Mrs Corby that he did not feel confident that she would succeed and told her of the probable cost. He said that Mrs Corby wanted to consider whether it was worthwhile proceeding. She later advised that she had decided not to go ahead. Mr Grayson “gave the appropriate notification of her decision” and closed his file. [17] That was the general summary of events as described by the firm of solicitors. The notice that appears on the Court file, signed by Mr Grayson, states that the appellant “withdraws this appeal”. [18] Mrs Corby filed an affidavit in support of her application to reinstate the appeal. She said that her visit to Mr Grayson on 11 February 2004 was disappointing; his exact words were that he was sick of ACC and thinking of giving up ACC cases. She said that Mr Grayson was not interested in helping her case. She said that the reason she withdrew the appeal was that Mr Grayson was not interested and at the time $3,000 was not within her means. Mr Corby filed an affidavit confirming the essential points. He said that they lost confidence in Mr Grayson. [19] Mr Grayson has not been asked to respond to those comments. There is no direct allegation that the solicitors failed to advise the appellant on an essential matter. It is not alleged that the appellant did not authorise the solicitors to withdraw or abandon the appeal. The point is left silent. The uncontradicted evidence is that Mr Grayson gave advice of a certain kind, which the appellant accepted and instructed him to withdraw the appeal. More than two months passed between the negative advice received in February and the instruction to withdraw in April. [20] Mrs Williams presented the appellant’s case concerning the merits of the intended appeal. I indicated that I would not decide in advance whether the merits of the appeal were relevant. I have considered the argument and the documents that were presented in order to see whether there was a striking unfairness which the Court should take some step to remedy. [21] I find no evidence that the solicitors’ advice was wrong. Mr Grayson put iy in terms that he did not feel confident that the appeal would succeed. Mr and Mrs Corby put it that Mr Grayson was not interested. It is reasonable to interpret the evidence to mean that Mr Grayson did not believe that there was a good chance of succeeding. Once again, interpreting the evidence fairly, Mr Grayson might have expanded on the difficulty that could be expected in arguing the appeal. That might be reflected in the appellant’s view that he was not interested. Whatever he may have said to give that impression, it is clear enough that he advised that the appeal did not have a good chance of success. [22] If, as Mr Corby said, they lost confidence in Mr Grayson, then it would seem to follow that they did not entirely accept his advice, but Mrs Corby decided to withdraw in any case. It seems more probable that Mrs Corby did accept the advice and made her decision to withdraw. In either case, the decision must have been a deliberate one. Probably, Mrs Corby was dispirited by finding that Mr Grayson was unable to offer her some hope and assistance. In that frame of mind she instructed him to withdraw the appeal. She then found renewed hope when discussing the case with Mrs Williams, who took a different view. But that is not enough to justify the Court intervening after the the appellant’s rights have been extinguished, to use the language of the cases mentioned above. [23] In my view, having carefully read all the material, the advice given by Mr Grayson was reasonable. It is a case where Mrs Corby was the victim of grossly negligent driving behaviour. Unfortunately, that is not a factor that entitles her to more generous consideration under a statutory compensation scheme that is independent of fault. It is of course a case that demands sympathy. [24] In a decision of this kind, it is not necessary to review the background in detail in order to illustrate the reasons for allowing or dismissing an appeal. The relevant facts would have to expose a fairly convincing case before the Court would intervene. In my view, the relevant facts reveal a case that is arguable, but which would be unlikely to succeed. [25] Mrs Corby suffered a neck injury when she was shunted by a vehicle in October 2001. She presented in May 2003 with a severe back problem. An MRI in May 2003 showed severe degeneration at L/23 L3/4 and L4/5 levels with marked progression since a previous examination in September 1996. At the time of the accident, her significant injury was through to be a neck injury. But there is evidence that she complained of pain in her back at the time of the accident, and complained of a burning sensation in both legs in a surgical consultation in February 2002. The symptoms were discounted by an orthopaedic surgeon and a neurosurgeon, and there was no investigation to determine whether she had an accident related back injury until she presented in mid 2003. [26] Dr Bok, neurosurgeon, said in In August 2003 that vertebral body changes are most probably reactive and due to longstanding disc lesion. He later said that “symptoms are most likely due to the disc prolapse demonstrated. This came on after an accident and as such should be covered by ACC”. [27] The appellant’s claim for cover was declined on the basis that there was strong evidence of pre-existing lumbar pathology and no contemporaneous evidence of lumbar symptom beginning or being aggravated in the accident in October 2001. [28] The Corporation’s view that there was no contemporaneous evidence requires reconsideration in the light of a ambulance report, in which is was reported that immediately following the accident the appellant had pain in her left lumbar spine. [29] Causation is not clear. Dr Bok said that symptoms came on after an accident and should be covered by ACC. This is a typical case in which the symptoms might have signalled underlying degeneration becoming symptomatic following the accident, or might have been from an injury caused by the accident, or an existing condition so aggravated as to amount to a new injury. The medical comments that can be located in the file are often equivocal, or inconclusive. Dr Bok came round to a definite statement of accident related injury, but he did not set out reasons for the Court to consider. [30] As the evidence stands at present, the Court would not be equipped to draw medical conclusions. It is not enough to point to isolated opinions expressed in routine medical correspondence, or to point to facts that the Corporation’s own medical advisor would not have taken into account, such as the ambulance officer’s note. The existing evidence would need to be subjected to careful evaluation by an independent specialist in order to form a view that would assist the Court in deciding whether there was a probable original or aggravating injury in October 2001. [31] The application does not provide evidence of the kind of manifest injustice that might encourage the Court to consider reinstating an appeal that has been abandoned or withdrawn. I record that this judgment does not attempt to decide whether the power to do so exists, only to say that if it did exist, the threshhold would have to be one of manifest injust, and that is not reached by the present evidence. Signed at Wellington on 4 April 2006