IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2018-485-208
[2019] NZHC 207	

BETWEEN	ACCIDENT COMPENSATION COPORATION
Intended Appellant	
AND	BRENDA NG and “L”
Respondents	

Hearing:	18 February 2019	
Counsel:	A S Butler and S J Thomson for ACC (Intended Appellant) B J Peck, L J Newman and E M Bransgrove for Respondents	
Judgment:	19 February 2019	

JUDGMENT OF CHURCHMAN J

[1]	The Accident Compensation Corporation (ACC) applies for leave to appeal the judgment of this Court of 2 November 2018. That decision related to three appeals (Ng and “L” where ACC was the appellant and “HK” where ACC was the respondent).

[2]	ACC does not seek to appeal that part of the decision relating to “HK” nor that part of the decision which held that there was no presumptive cover for treatment injury simply because the claimant demonstrates that he or she had suffered an injury during the course of treatment.

[3]	In respect of the balance of the decision, ACC alleges that the Court erred in relation to its finding that the words “ordinary consequence” in s 32(1)(c) of the Accident Compensation Act 2001 (the Act) means a consequence of 50 per cent or greater chance of occurring.

ACCIDENT COMPENSATION COPORATION v NG and “L” [2019] NZHC 207 [19 February 2019]

[4]	ACC allege a number of errors of law including:

(a)	this interpretation amounted to a “paradigm shift” and cover for treatment injury that there was no legislative intention to provide for such a shift;

(b)	that the interpretation provides cover for treatment if the consequence had less than the 50 per cent chance of occurrence irrespective of whether the treatment was properly (competently) given;

(c)	the decision was inconsistent with the Court of Appeal’s decision in
Adlam v ACC;1

(d)	the interpretative approach was “essentially statistic-focused” notwithstanding the Court held that a purely quantitative analysis was not correct;

(e)	the Court erred in finding that “ordinary” must have an experiential component;

(f)	rejecting the suggestion that “increased risk” or “reasonable risk” were not the same as an “ordinary consequence”’;

(g)	focussing on the causative link between the treatment and the adverse outcome, the expense of the background risk of injury.

The law

[5]	Section 163 of the Act provides that a party to an appeal before the High Court under s 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of the Court on a question of law only.

1	Adlam v ACC [2017] NZCA 457, [2018] 2 NZLR 102.

[6]	It is not sufficient for the intended appellant to point simply to a possible question of law, but they must identify an issue that is capable of bona fide and serious argument, and which assumes sufficient importance to justify a further appeal.

[7]	The required degree of importance can relate to a number of factors:

(a)	the question of law could be a matter of widespread application to a large number of cases; or

(b)	it could be a matter of profound significance to the intended appellant; or

(c)	a small number of similarly placed claimants.

[8]	Ultimately the interest of justice should require that leave be granted so that the intended appellant will be entitled to what is effectively a fourth legal hearing in relation to matters in issue.2

[9]	The respondents oppose the application for leave to appeal. They acknowledge that the meaning of “ordinary” in s 32(1)(c) could potentially be the subject of a question of law but submit that the various arguments that the intended appellant wishes to advance are not capable of serious argument.

[10]	They argue that the interpretation being advanced by ACC namely that a consequence will be an “ordinary” one if it is common place and within the normal range of medical or surgical failure merely supplants one vague term (ordinary consequences) with other vague terms. They also argue that the concept of “common place” advanced by ACC is equally as consistent with an interpretation of being more probable than not (or exceeding 50 per cent).

2	See Sinclair v Accident Compensation Corporation [2012] NZHC 2564 at [7]; Avery v No 2 Public Service Appeal Board [2973] 2 NZLR 86 (CA); Jackson v ACC HC Auckland AP404-96-01,   14 February 2002; Kenyon v ACC [2002] NZAR 385 (HC).

Analysis

[11]	Not all of the proposed grounds for leave to appeal involve either questions of law or questions of law falling within s 163.

[12]	The intended appellant mis-states the finding of the Court in relation to the role of statistical analysis by referring solely to [101(f)] of the decision3 and ignoring the answer to the question set out at [103(b)(ii)]: “What weight should be accorded to statistics?”, with the answer being:

… an assessment of what an ordinary consequence is has an experiential component and some form of statistical analysis is likely to assist such an enquiry. However, care needs to be taken to ensure that any statistics analysed relate to sufficiently similar situations so as to avoid arbitrary or unfair outcomes.

[13]	Acknowledging that the Court was obliged to apply a “generous and unniggardly” approach to the interpretation of the Act,4 the intended appellant submitted that the approach taken by the Court was “overly” generous. An assessment of whether the Court was “overly” generous is not a question of law.

[14]	It is not seriously arguable that the Court failed to have regard to s 5 of the Interpretation Act 1999 and did not seek to ascertain the meaning of s 32(1)(c) from its text in light of its purpose.5

[15]	Neither is it tenable to argue that the Court placed “too strong a focus on statistical analysis when the correct approach would be to look at all the circumstances of the treatment, including both relevant qualitative and quantitative aspects”.

[16]	The Court specifically held6 in response to the question: “Is the test a qualitative or quantitative one, or a mixture of both?”, that it was “a mixture of both”. The Court also expressly acknowledged that the test should be based on the actual presentation of the claimant.7

3	Accident Compensation Corporation and “HK” v Brenda Ng, “L” and Accident Compensation Corporation [2018] NZHC 2848 at [101(f)].
4	See Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [130].
5	Above n 3 at [28]-[31] where the Court sets out this approach.
6	Above n 3 at [103(b)].
7	At [103(b)(i)(a)].

[17]	However, there is one question of law that does seem to meet the requirements of s 163 and justifies what will effectively be a fourth hearing of this matter. This is a question arising from [3](a) of the application for leave to appeal, and it is whether, for the purposes of interpreting the concept of “ordinary consequences” in s 32(1)(c) of the Act the term “ordinary” means more probable than not.

[18]	Accordingly, I grant leave to further appeal to the Court of Appeal on the following question:

“Was the Court correct to conclude that the word “ordinary” in s 32(1)(c), referring to an “ordinary consequence” means a consequence that is “more probable than not”.

[19]	There is no order as to costs.

Churchman J

Solicitors:
Thorndon Chambers, Wellington for Intended Appellant John Miller Law, Wellington for Respondents