Rosenberg v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT WELLINGTON (2018] NZACC 175 ACR 391/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION UNDER SECTION 162 OF THE ACT FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW BETWEEN REBECCA ROSENBERG Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers at Auckland Judgment: 9 November 2018 DECISION OF JUDGE G M HARRISON 2 [1] Ms Rosenberg applies for leave to appeal to the High Court on a question of law against the decision of Judge JH Walker of 16 March 2018 in which Ms Rosenberg's appeal from a reviewer of the Corporation's decision of 6 May 2015 was dismissed. [2] The application was referred to Judge Henare who, in a minute of 27 March 2018, directed that submissions were to be filed and served by specified dates and that once filed the application would be determined on the papers. Submissions have now been filed although the Corporation does not raise any objection to Ms Rosenberg's submissions being filed late. [3] Ms Rosenberg's application was contained in an email of 27 March 2018 in which she said simply - "I would like to request leave to appeal to the High Court." The Registry accepted that email as an application, for leave to appeal. [4] Ms Rosenberg ultimately filed a series of 136 documents, which all appear to be further evidentiary material aimed at achieving an outcome in her favour. [5] Mr Light, counsel for the Corporation, wrote by email to Ms Rosenberg on 7 June 2018 referring to the materials forwarded by her to the Registry. He said, in part - I must say that I was unable to make head or tail of it. It is a mixture of submissions, some of which at least are the same as the submissions that you made for the hearing of the appeal, and evidence filed in support of the appeal. I could not follow the page order. Most importantly, it is not focused on the relevant question, i.e. whether or not there is a question of law (not a question of fact) that should be considered by the High Court. Judge Henare directed on 27 March 2018 that you were to file submissions by 25 May 2018. The covering email from Ms Marsh underlined the words "question of law" i.e. that an application for leave to appeal could only be made on a question of law and leave to appeal would only be given if the grounds were established. You have to therefore identify a question of law, not a question of fact in support of your application for leave to appeal to the High Court. [6] At issue is the Corporation's decision of 6 May 2015 declining to extend cover for an alleged injury at C1/C2 of the spine, said to have been caused by a Thai 3 massage in Phuket, Thailand, on 26 October 2004. Ms Rosenberg has cover for a C5/6 disc prolapse. [7] An extraordinary number of medical reports and opinions were considered by Judge Walker in her decision. [8] The essence of the Judge's decision is as follows: [188] Ms Rosenberg's submissions refer to all comments by medical personnel which she states are the objective clinical findings of "... medical practitioners relating to her C1/C2 injury." [189] Ms Rosenberg has, I find, cherry-picked odd phrases from reports. For example, Dr Gluckman "head tilt to the L", Dr Hawkins "left oral margins slow twitch, et al". But I find these characteristics, observed together with the overseas specialists' comments, including Dr Franck's analysis do not establish any specific injury at C1/C2, and do not establish or support any evidence of causation relating back to the accident of October 2004. [190] Although it is understandable that Ms Rosenberg is anxious to identify her ongoing pain and seek some resolution, I find in her submissions that to achieve this she seeks to denigrate those medical opinions which she does not agree with emphasising the quality of the opinions of the persons that do provide her with what she views as the answer. [9] The Judge concluded: [197] Accordingly, I do not find that she has discharged the onus as to proof of causation even with the further medical opinions relating to the events of October 2004. and the appeal was dismissed. [10] In her extensive submissions of 27 August 2018 in reply to the Corporation's submissions Ms Rosenberg postulates four questions of law in paragraph 1.2. These are: (i) Did Judge Jan Walker take an incorrect approach to causation by not correctly applying the legal causation principles, as outlined the (sic) NZ Court of Appeal, in the Ambros case resulting in a wrong conclusion? 4 (ii) Is it "unreasonable", within the meaning of s 54 of the ACC Act 2001, for a Judge to ignore a patient's submissions and the accompanying evidence that showed physical findings of an injury, by multiple medical practitioners; (iii) Has Judge Walker erred in law by taking into account irrelevant considerations and failing to take into account relevant considerations? (iv) Has the medical profession erred in law, by failing to provide properly for the classes of patients with rare conditions; new and emerging conditions; unknown medical conditions; and "diagnosis difficulties"? [11] I discount proposed question 4 immediately as not being an issue of law arising from Judge Walker's decision. [12] As for the first three questions, they can be dealt with conveniently by reference to the obligation of a Judge to reach factual findings having correctly applied the relevant law. [13] In this case, the right of Ms Rosenberg to cover required proof that she had sustained an injury by accident in October 2004 as a result of the massage in Thailand. [14] Whether or not an injury was sustained required an assessment of all relevant evidence. That involves a finding of fact. [15] In Bryson v Three Foot Six Limited [2005] 3 NZLR 721 the Supreme Court said at [21]: ... the task which the lower court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law. [16] It said further: [25] An appeal cannot, however, be said to be on a question of law where the fact finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding court, unless it is clearly unsupportable. [17] In this case there was significant medical evidence concluding that no injury had resulted from the incident in October 2004. [18] Judge Walker dealt with the conflict of evidence as follows: [191] The basis of Professor Smith's views appear to be his reading of the CT scan of 22 March 2006 and identifying a C1/C2 injury. However, this is clearly not the position taken by a number of other eminent specialists and radiologists who have seen the scanning In addition, I note, the quality of that scan presents limitations. [192] Professor Smith's contact with Ms Rosenberg is limited and it was on the basis of his beliefs he referred her to Dr Franck. Dr Franck provided a report based again on information forwarded to him by Ms Rosenberg, however neither of these persons have undertaken any independent imaging, nor carried out an examination of Ms Rosenberg. [193] Although they can speculate, I do not accept their reports establish, on the balance of probabilities, any evidence of causation for the injury identified and at best only a temporal association. [19] The Judge concluded that Ms Rosenberg had not discharged the onus of proof of causation. [20] That conclusion was clearly open to the Judge on the conflicting medical evidence. She decided after assessing all the evidence, as a fact, that no injury occurred in October 2004 and that consequently cover was not available. [21] That is a determination of a question of fact and no question of law arises. The answers therefore to the questions of law posed by Ms Rosenberg are first, that Judge Walker did not take an incorrect approach to causation. The Judge did not ignore Ms Rosenberg's submissions and the accompanying evidence and clearly rejected the evidence relied upon by Ms Rosenberg in favour of extensive evidence otherwise before her. Lastly, it has not been demonstrated that Judge Walker failed to take into account relevant considerations or indeed took into account irrelevant considerations. [22] No question of law arises. Ms Rosenberg merely disagrees with the factual finding of Judge Walker that no injury was sustained in October 2004, and consequently there is no basis upon which leave to appeal can be granted. [23] The application is accordingly dismissed. District Court Judge