REDEN-OLDFIELD V ACCIDENT COMPENSATION CORPORATION HC WHA CIV-2005-485-185

REDEN-OLDFIELD V ACCIDENT COMPENSATION CORPORATION HC WHA CIV-2005-485-185 8 December 2005IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY CIV-2005-485-185UNDER the Accident Insurance Act 1998 IN THE MATTER OF an application for special leave to appeal to the High Court under s 165(3) of the Accident Insurance Act 1998 BETWEEN SUSAN REDEN-OLDFIELD Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 8 December 2005 Appearances: Appellant in person Mr D Tuiqereqere for respondent Judgment: 8 December 2005(ORAL) JUDGMENT OF LANG J [re application for special leave to appeal to High Court]Counsel: Mr D Tuiqereqere, Parnell, Auckland Solicitor: M J Mercer, Legal Services, ACC Wellington for respondent Copy to: Ms S Reden-Oldfield, 9 Bowen Street, Kawakawa, Northland[1] The applicant, Ms Reden-Oldfield, applies for special leave to appeal to this Court from a decision of the District Court dismissing her appeal against a decision of the Accident Compensation Corporation. Special leave is required because Ms Reden-Oldfield was unable to obtain leave from the District Court. [2] The manner in which the proceeding has come before this Court gives rise to an immediate jurisdictional issue.Jurisdiction[3] The present proceedings are governed by the provisions of s 165 of the Accident Insurance Act 1998. It reads as follows:165 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. (2) The leave of the District Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days after the District Court's decision. (3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal. (4) The special leave of the High Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days of the District Court's refusing leave. (5) Sections 72 to 78A of the District Courts Act 1947 apply, with any necessary modifications, to an appeal to the High Court under this section.[4] In the present case the substantive decision of the District Court was a judgment delivered by Judge Barber on 27 February 2001. In terms of s 165(2) of the Act Ms Reden-Oldfield was therefore required to seek leave to appeal against that decision within 21 days of 27 February 2001. In other words her application for leave ought to have been filed no later than 20 March 2001.[5] The provisions of s 165(2) are mandatory. In my view they do not permit an application for leave to be filed after the prescribed 21-day period. Any application that is not filed within this period would therefore be a nullity and should be struck out on that basis. [6] That is in fact how Judge Hole determined the proceeding when he considered the application for leave in February 2005. His final conclusion was as follows:7. Pursuant to s 165(2) this Court can only grant leave to appeal to the High Court if the application for leave is made within 21 days of the District Court's decision. That decision was dated 27 February 2001 and the first intimation that the appellant wished to appeal to the High Court came with the filing of the notice of appeal on 20 July 2004. Thus, the application for leave to appeal to the High Court was not made within 21 days of the District Court's decision: indeed, more than three years elapsed before there was any intimation that the appellant wished to apply for leave to appeal to the High Court. 8. Accordingly, this Court has no power to grant leave to the appellant to appeal to the High Court. The application for leave to appeal to the High Court is dismissed.[7] Although Judge Hole framed the determination of the proceeding as a dismissal of it, nevertheless his finding that the District Court had no power to grant leave indicates that he did not dismiss the application on its merits. Rather, he held that the District Court had no power to determine it. On that basis I consider that, on a proper construction, Judge Hole dismissed the proceeding on the basis that it was a nullity. In that sense he did not refuse to grant leave. [8] Any application to this Court for special leave to appeal must be sought within 21 days of the District Court refusing to grant leave. The purpose of this provision is no doubt to ensure that appeals are brought expeditiously. In the present case the fact that the earlier application to the District Court was a nullity means in my view that there was no power to file the application for special leave in this Court notwithstanding the fact that it was filed within 21 days of Judge Hole's decision. For this reason I consider that the present application is defective and should be struck out as a nullity on this ground alone.[9] In case I am wrong on that point, however, I propose to consider the application on the basis that it was validly filed. In order to do that it is necessary to set out the factual background in some detail.Factual background[10] In September 1994 Ms Reden-Oldfield lodged a claim for cover with the Corporation for a sprained neck. She said that this injury occurred as a result of an assault by her former husband that occurred on 3 June 1993. Cover was granted at that time, although no payments were initially made pursuant to the grant of cover because no monetary claim of any type was lodged. [11] An application for an independence allowance was subsequently filed on Ms Reden-Oldfield's behalf by Dr Fogg on 3 July 1998. Dr Fogg was not Ms Reden- Oldfield's regular doctor but he nevertheless lodged the claim on her behalf. In the medical certificate portion of the application Dr Fogg recorded that Ms Reden- Oldfield had suffered a head injury whilst pregnant on 3 June 1993. He recorded that the injury was not stable and that it was likely that the injury would result in impairment. [12] In describing the deterioration in Ms Reden-Oldfield's condition Dr Fog recorded that she had suffered intermittent severe headaches after her baby was born on 10 December 1993. He said that this was interfering with her activities and daily living and that she was unable to work. [13] The Corporation then sought advice from Dr Summers, a medical assessor in Hastings. In a written report to the Corporation dated 11 August 1998 Dr Summers reached the following conclusion:ConclusionUnless we have evidence to the contrary, I do feel this patient should be taken seriously, but I think on the day of assessment the only way I can make a reasonable judgment is by using Table 2, Page 4/142 as a 14 per cent whole person impairment as it is clear that she seems to be able to live an independent life. However, I do not feel this was really a very satisfactory assessment, as there is extraordinarily little psychiatric information for me to go on and I do not consider that I am qualified to make a particular judgmentin this direction. I feel efforts should be made to establish a proper diagnosis and to establish the facts of the apparent assaults which she says that she encountered during all four pregnancies. I suggest this is an interim assessment.[14] On the basis of Dr Summers' interim assessment the Corporation accepted Ms Reden-Oldfield's claim for an independence allowance and payments began to be made. Thereafter, however, the Corporation commenced making further enquiries. In early 1999 it sought further information regarding the neck injury from Ms Reden-Oldfield's general practitioner (Dr Lawrence), the Bay of Islands Hospital and the Whangarei Area Hospital. As a result of the information that the Corporation obtained from these sources it concluded that there was insufficient evidence to support her claim that she had suffered a physical injury on 3 June 1993. After seeking advice from two further medical practitioners the Corporation issued a decision on 18 April 2000 revoking Ms Reden-Oldfield's entitlement to cover. She applied for a review of that decision but the review was unsuccessful. It is not now possible to ascertain the basis upon which the review was disallowed because the transcript of the hearing was apparently inaudible. [15] Ms Reden-Oldfield then appealed to the District Court and her appeal before Judge Barber was heard on 17 October 2000. [16] In dismissing Ms Reden-Oldfield's appeal Judge Barber noted that her primary complaint arising from the alleged assault in June 1993 was that she suffered ongoing migraines. However, in order for those migraines to be covered under the Accident Compensation Corporation legislation, it had to be demonstrated that the migraines arose from physical injury by accident. The Judge noted that there was no independent medical record of physical injury having been suffered by Ms Reden-Oldfield in June 1993. Moreover, such medical evidence as existed did not support her contention that her migraines were caused by an alleged assault or physical injury at that time. In fact, Judge Barber found that the medical evidence suggested that the migraines may have arisen from other causes. In the absence of medical evidence that the migraines were related to a physical injury caused by an accident, the Judge held that Ms Reden-Oldfield was not entitled to cover for them.[17] Having had her application for leave dismissed, Ms Reden-Oldfield now seeks special leave from this Court to appeal against Judge Barber's decision.Jurisdiction for special leave to be given[18] Ms Reden-Oldfield's application for review was lodged on 29 April 2000. It is for that reason that the provisions of s 165 of the Accident Insurance Act 1998 apply to the present appeal. [19] The only ground on which an appeal may be advanced to this Court is that the decision of the District Court was wrong in law. Errors of fact by the District Court are therefore incapable of forming the basis for an appeal to this Court unless those errors led the District Court also to commit an error of law. [20] The material initially filed by Ms Reden-Oldfield in support of the application did not specify the error of law that is alleged to have been committed by the District Court. When this proceeding was called before Allan J on 28 June 2005, however, Ms Reden-Oldfield explained that the error of law that she relies upon is that the findings of fact made by Judge Barber were not supported by the evidence before him. As Allan J noted, a finding made in the absence of evidence which could reasonably support it may constitute an error of law: Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, Ogilvy & Mather (NZ) Ltd v Turner[1996] 1 NZLR 641 (CA). [21] However, not every question of law will give rise to a right of appeal. InKenyon v Accident Compensation Corporation (Unreported, High Court Wellington, AP 258/00, 19 December 2001) Fisher J noted that the following principles apply to an application for special leave:(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA). (b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; ManawatuCo-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43 (c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Limited (1990) PRNZ 464 (d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA) (e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra).[22] It has also been held that an applicant for special leave must identify an error of law that is capable of bona fide and serious argument: See Impact Manufacturing Ltd v ARCIC (Unreported, High Court Wellington, AP 266/00, 6 July 2001, Doogue J). [23] As a result of the principles to which I have referred the issue to be determined in the present application is whether Ms Reden-Oldfield can establish that she has a bona fide and serious argument to the effect that the evidence before Judge Barber did not support the findings that he made. [24] In order to consider that issue it is necessary to traverse the nature of the evidence that was adduced before Judge Barber.The evidence in the District Court[25] As I have already indicated, Judge Barber's ultimate conclusion was that, in the absence of medical evidence that Ms Reden-Oldfield's migraines were related to a physical injury caused by accident, she was not entitled to cover for them. [26] The learned Judge's conclusion regarding the medical evidence is to be found at paragraph [42] of his judgment and is in the following terms:None of the said medical practitioners have opined that the appellant's migraines are due to the alleged assault in 1993. Both Dr Jensen and Dr McGrath suggested non-accident related causes, despite having specificallyconsidered the alleged 1993 head injuries. Ms Levin found no evidence of an organic brain injury.[27] This paragraph makes it clear that Judge Barber relied principally on the evidence of Dr McGrath (a neurologist), Dr Jensen (a psychiatrist) and Peta Levin (a clinical psychologist) in reaching his conclusion. The reference in his judgment to "none of the medical practitioners" indicates, however, that the Judge had regard to all of the evidence provided to him by medical practitioners. These are summarised in paragraph [25] of the judgment as follows:The Medical Evidence [25] The medical evidence available is as follows: (a) 8 July 1993 Discharge Report – Whangarei Area Hospital; (b) 26 October 1994 X-rays – Dr Kevin Scott, Radiologist; (c) 13 December 1994 and 5 January 1996 Reports – Ramesh Nagappan, Physician; (d) 22 May 1995 and 26 June 1999 Reports – Dr Paul Jensen, Psychiatrist; (e) 13 February 1996 Report – Dr Nicole McGrath, Physician; (f) 14 February 1996 CT Scan – Dr C Prain, Radiologist; (g) 11 August 1998 Independence Allowance Assessment – Dr P Summers, Independence Allowance Assessor; (h) 3 March 1999 Letter – Annette Robinson, Secretary to Chief Medical Advisor; (i) 9 March 1999 Letter – Dr A Lawrence, General Practitioner; (j) 18 September 1999 File Note – Graham Corbett, Branch Medical Adviser; and (k) 4 April 2000 Report – Peta Levin, Clinical Psychologist and Neuropsychologist.[28] Much of this evidence is discussed by Judge Barber in paragraphs [32] to [41] of the judgment. There are references in this part of the judgment to findings or assessments made by Dr Lawrence, Dr Summer, Dr Scott, Dr Prain, Dr McGrath, Dr Jensen and Ms Levin.[29] In reaching his conclusion at paragraph [42] that "none of the said medical practitioners have opined that the appellant's migraines are due to the alleged assault in 1993" I am satisfied that Judge Barber had regard to the whole of the medical evidence and not just aspects of it provided by Drs Jensen, McGrath and Levin.Decision[30] As the learned District Court Judge rightly observed, the onus was on Ms Reden-Oldfield to establish on the balance of probabilities that she was entitled to cover from the Corporation. In order to do this she needed to demonstrate two things. First, that she had suffered an injury that came within the definition of a personal injury by accident. Secondly, that that injury had caused her to suffer the condition for which the independence allowance was sought. That condition was the migrainous headaches that she complained of. The Judge's ultimate conclusion was that Ms Reden-Oldfield had not produced sufficient evidence to satisfy that standard. [31] I think it has to be said that there is evidence to suggest that Ms Reden- Oldfield did in fact suffer an injury to her neck in 1993. She has consistently maintained that she suffered the injury and she has always been specific about the actual date upon which it was inflicted. There is therefore evidence to suggest that the injury was suffered. The real issue in the present case is whether that particular injury can be said to have caused the migrainous headaches that Ms Reden-Oldfield has now been suffering from for some time. [32] In advancing the appeal Ms Reden-Oldfield said that she was unable to recall precisely when she began suffering the headaches. She also insisted, as she has always done, that she had never suffered from such headaches before she suffered the injury in June 1993. Some of the evidence before Judge Barber was to the effect that she did not suffer any headaches until 1994. She explained during the course of the hearing before me that it was only in 1994 that she was able to properly chart the headaches. Prior to that date, and during 1993, they had been coming and going but they were not a constant feature of her life and she had been unable to chart them.[33] There is certainly evidence that as early as 1996 Ms Reden-Oldfield had been complaining to doctors of headaches being suffered as early as 1993. Dr Nicole McGrath, a physician employed by Northland Health at the Whangarei Area Hospital, saw Ms Reden-Oldfield on 13 February 1996. In a letter written by Dr McGrath to Ms Reden-Oldfield's doctor in Kawakawa, Dr Lawrence, Dr McGrath said this:During her pregnancy two years ago, Susanna suffered a significant head injury of 54 blows to the head. Shortly after that she developed headaches. Prior to this her only previous headache was in 1988 after drinking cocoa. The headaches were initially attributed to pregnancy, but obviously has persisted. there is a family history of migraine on her mother's side. She is on no medication and in fact has not taken any analgesia for the headaches. [34] Ms McGrath's conclusion was, however, to the effect that Ms Reden- Oldfield's headaches were "tension headaches with some migrainous features". She did not at that time attribute the headaches to the head injury suffered by Ms Reden- Oldfield during her pregnancy. I interpolate to say that a strict reading of Dr McGrath's letter to Dr Lawrence would indicate that Ms Reden-Oldfield began suffering headaches two years prior to 1996 (ie in or about 1994). This cannot be correct, however, because the pregnancy in question was between March and December 2003. [35] During the hearing today I asked Ms Reden-Oldfield to go through all of the medical evidence and to produce the best evidence she could find to support her contention that the headaches are most likely to have been caused by the neck injury that she suffered in June 1993. Having been given some time to do so she was unable to point to anything concrete in the medical evidence to support that proposition. She reiterated, however, that the headaches only arose after the injury in question and that she had never suffered from them before June 1993. She also pointed out that Dr McGrath must have been in error when placing significance on the fact that there was a family history of migraine on her mother's side. This is because her mother was adopted and any family history would obviously be irrelevant.[36] Ms Reden-Oldfield also placed some significance on a CT scan that was carried out by Dr Prain on 14 February 1996. Dr Prain's report contains the following passage:There is a very small low density area alongside the posterior margin of the right cerebellar hemispheres. This is thought to represent a localised minor widening of the subarachnoid space. It would be of questionable significance. ..[37] Ms Reden-Oldfield submitted that, although no CT scans were taken at the time of the initial injury, nevertheless the CT scan taken by Dr Prain supported her evidence that she does indeed have some lasting injury as a result of the incident that occurred in June 1993. The problem with this particular submission, even accepting that the matters observed by Dr Prain were caused by the assault in 1993, is that Dr Prain was of the view that the matters that he observed were of questionable significance. Ms Reden-Oldfield confirmed also that she did not place any great reliance on this aspect of her case during the hearing before Judge Barber. [38] When I view the matter overall I have reached the same conclusion as Judge Barber. That conclusion is that the medical evidence adduced before Judge Barber does not support the proposition that Ms Reden-Oldfield's migraines have been caused as a result of the neck injury that she suffered in June 1993. That being the case, it cannot be said that it was not open to Judge Barber to reach the conclusion that he did on the evidence that was before him. I am therefore satisfied that Ms Reden-Oldfield cannot establish a bona fide and seriously arguable error of law. For that reason the application for special leave must be dismissed.Postscript[39] That is, however, not the end of the matter. Ms Reden-Oldfield also seeks to rely on new evidence as supporting her case. The new evidence could not assist her in the application for special leave, because that application is based solely on her assertion that Judge Barber could not reasonably have reached the decision that he did on the material before him.[40] Nevertheless, I have reached the conclusion that the material upon which Ms Reden-Oldfield now wishes to rely may have some significance. First, Ms Reden- Oldfield has produced a letter from an osteopath, Mr Max Belcher. Mr Belcher has an osteopathic practice in Whangarei, and he treated Ms Reden-Oldfield in 1994. In a report dated 31 August 2004 Mr Belcher records that Ms Reden-Oldfield came to him for treatment on 28 August 1994. He notes also that at that time she was seeking relief from migraines that had occurred following an assault. His notes go on to say:Examination revealed lack of movement of bones of the skull in the left temple/sphenoid region and compression of occipital atlas function consistent with impact type injuries.[41] Ms Reden-Oldfield explains that she only recently became aware that Mr Belcher had retained notes of her visit in August 1994. She says, and I agree, that these notes demonstrate that in 1994 she was exhibiting signs of physical injury that may be consistent with the assaults that she maintains occurred in June 1993. [42] Mr Belcher's report does not go so far as to date the injuries. It is likely that, if his observations are to be of any assistance to Ms Reden-Oldfield in the future, he will need to expand upon them considerably. Nevertheless, they do provide an empirical basis to support Ms Reden-Oldfield's assertion that she did suffer physical injuries in June 1993 and that this had a lasting effect upon her. [43] Mr Belcher goes on to say that, since Ms Reden-Oldfield did not suffer migraines prior to the assault, "it is reasonable to assume that the occurrence of the migraines is consistent with the assault". I am not sure that Mr Belcher has the necessary medical qualifications to make that observation. It is nevertheless possible that his observations of the injuries may be capable of interpretation by other appropriately qualified medical practitioners. If the injuries that were observed by Mr Belcher are consistent with those allegedly inflicted on Ms Reden- Oldfield in June 1993, they may enable a link to be established between the injuries and Ms Reden-Oldfield's subsequent headaches. [44] The next piece of evidence upon which Ms Reden-Oldfield now wishes to rely is a letter by an optician, Mr Cavacich. Mr Cavacich has supplied a letter dated25 September 2004, in which he records that he first saw Ms Reden-Oldfield for the first time in August 2002. He saw her again in September 2004. Mr Cavacich's letter goes on to say:She has a large exaphoria (at [sic] tendency of the eyes to turn apart – to diverge outwards). This anomaly was larger than normal in 2002, and is even larger now. Such a problem can very easily cause headaches, fatigue, eyestrain, and if it progresses (as it is doing) can ultimately lead to double vision. While it is impossible (at this time) to pin this problem down to any one incident, I can confirm that these types of problem are a fairly common consequence of head injury. Sometimes the problem is of short duration, and for others it can become a permanent issue.[45] I consider that this evidence is also capable of supporting Ms Reden- Oldfield's assertions. In particular, it may provide a link between the injury in June 2003 and the headaches that Ms Reden-Oldfield has suffered from since that time. [46] These are all matters that are outside the scope of the present application. Nevertheless, as I observed to counsel for the respondent during argument, it is the obligation of the Corporation to apply the provisions of the Act in all cases. The Corporation has the ability, if it so wishes, to review a claimant's case at any time based on new evidence that comes to light. Ms Reden-Oldfield is sceptical that this will occur in the present case because she has already provided this information to the Corporation and it has taken no action. I am of the view, however, that the Corporation should view the matter afresh in the light of the matters to which I have referred. In particular, I am of the view that it should give consideration to referring the new evidence to medical practitioners who are appropriately qualified to comment on the matters that are germane to Ms Reden-Oldfield's case.Result[47] For the reasons given above, however, the application for special leave to appeal to this Court cannot succeed and it is struck out.Costs[48] There is no order as to costs. Lang J