Buckley v Accident Compensation Corporation

[2016] NZHC 1500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-211 [2016] NZHC 1500

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an appeal on questions of law under s 162

BETWEEN

MARION BUCKLEY Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Defendant

Hearing:	On the papers
Counsel:	H G de Groot for Appellant J Coates for Respondent
Judgment:	4 July 2016

JUDGMENT OF WILLIAMS J

[1]      The appellant, Marion Buckley has cerebral palsy as the result of a hypoxic ischemic neural insult she suffered immediately prior to her delivery on 23 May

2007.  She suffers marked neurocognitive impairment as a result.

[2]      On appeal to the District Court, Judge Cunningham held that ACC was not liable to extend cover for Marion’s cerebral palsy under ss 32 and 33 of the Accident Compensation Act 2001.

[3]      Judge Sharpe granted leave to appeal on two questions of law:

(a)       Was the law in respect of causation correctly applied?

BUCKLEY v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1500 [4 July 2016]

(b)      Should  reasons  have  been  given  to  reject  the  evidence  of  Dr

Broadbent in assessing causation?

[4]      Counsel have now resolved the matter, and accordingly seek orders that the appeal be allowed by consent on the basis that insufficient reasons were given for the findings in the District Court judgment, and that the matter be sent back to the District Court for rehearing.

[5]      Notwithstanding consent, I must independently consider the appeal and do so now.

[6]      It is well-established that Judges should give reasons for their decisions, and failure to do so may amount to an error of law in certain circumstances.1   In the ACC context, the importance of giving reasons was recently explained by Collins J as follows:2

[40]     There is no universal rule concerning the extent to which a court should provide reasons for its decision. It is essential, however, that in order to ensure justice is achieved between the parties, Judges hearing ACC appeals must do what they can to ensure the parties can understand why an appeal has either been allowed or dismissed. The extent to which reasons are required depends on the context. Sometimes a few lines will suffice. On other occasions a more extensive explanation is required.

[7]      It is evident that in this case, Judge Cunningham did not give reasons that were  sufficient  for  the  appellant  to  understand  why  the  appeal  was  dismissed. Overall, the reasons given are very brief.   In particular, the evidence of Associate Professor Broadbent, who according to the appellant, provided the most detailed evidence on the pathophysiological consequences of delay in expediting delivery, is only briefly mentioned in the judgment.   No reasons are given for rejecting this evidence and preferring the evidence of Dr Westgate.  Dr Westgate’s view formed the basis of the Judge’s decision that there was an insufficient evidential basis for causation.    The  appellant  is  entitled  to  know why Dr Westgate’s  evidence  was

preferred and why an evidential foundation for causation was not established.

1      R v Awatere [1982] 1 NZLR 644 (CA) at 648-649; R v Jefferies [1999] 3 NZLR 211 (CA) at

[14]-[17].

2      Thompson v Accident Compensation Corporation [2015] NZHC 1640, [2015] NZAR 1163.

[8]      Accordingly, I make the following orders.

(a)       the appeal is allowed by consent on the basis that insufficient reasons were given for the findings in the District Court judgment; and

(b)the District Court will rehear this proceeding on the basis that the issue  for  determination  is  whether  the  claimant  has  suffered  a

treatment injury within the meaning of the Act.

Solicitors:           John Miller Law, Wellington, for Appellant

Claro Law, Wellington, for Defendant

Williams J