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Turner v Accident Compensation Corporation [2015] NZACC 59 (31 March 2015)

Last Updated: 14 April 2015

IN THE DISTRICT COURT
AT CHRISTCHURCH

[2015] NZACC 59 ACR 540/10

UNDER THE ACCIDENT COMPENSATION ACT 2001

IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT

BETWEEN COLIN TURNER

Appellant

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 13 November 2014

Appearances: W A Forster and T M Baraclough for the appellant

I G Hunt for the respondent

Further Submissions: 4 February 2015

Judgment: 31 March 2015
____________________________________________________________________

RESERVED JUDGMENT OF JUDGE L G POWELL

____________________________________________________________________

[1] The appellant, Colin Turner, has cover for injuries received in a motor vehicle accident in 1988.
[2] On 30 December 2009 the Corporation suspended Mr Turner’s entitlements, including in particular weekly compensation, the decision letter stating:

As you know, ACC has been reconsidering your entitlement to weekly compensation. We have now received the medical reports from Dr L J Du Plessis which was followed by a Neuropsychological assessment from Mr John Kennedy.
ACC has looked carefully at all the information now available, and has decided that your current condition is no longer the result of your personal injury of 13/10/1988. The contemporaneous medical documentation and subsequent medical case review does not support that you actually suffered a head injury in the accident.
The neuropsychological assessment completed by Mr John Kennedy shows symptoms that are not consistent with a brain injury nor with a psychological disorder as a result of the accident. Mr Kennedy, as does Dr Du Plessis, clarifies his reasoning and rationale.
This means that you are no longer entitled to support from ACC.

[3] Mr Turner sought a review of the decision. The review proceeded to hearing following which the reviewer, Jane Wilson, issued her decision and noted relevantly that:

I accept Mr Forster’s argument the issue in this case is about cover, and whether Mr Turner’s symptoms are the physical and mental consequences of his accident in 1988. This is because ACC granted cover to Mr Turner under the legislation in force in 1988, that is, the 1982 Act. ACC has not revoked the cover, merely suspended entitlements using the test set out in Ellwood.
...
ACC granted Mr Turner cover for difficulty in concentration and memory problems resulting from his accident. The question I must ask is whether Mr Turner is still suffering from his personal injury, that is, the concentration and memory problems, for which ACC granted him cover.
...
Taken as a whole, I consider the medical evidence does support the view Mr Turner suffers from at least the mental consequences of his accident. This is the case even though I accept Dr Du Plessis’ opinion there is no evidence of any brain injury. There is clear evidence throughout all the reports right until 2009 that Mr Turner suffered from difficulties with his concentration, attention and memory.
[Emphasis added]

[4] As a result, Ms Wilson concluded:

The definition of personal injury by accident under the 1982 Act includes the physical and mental consequences of any injury or accident. The evidence shows Mr Turner suffered mental consequences from his accident and continues to do so. Therefore, he is entitled to receive weekly compensation, as he has done for the last 20 years.

[5] As is evident, Mr Turner was successful in the review and his entitlements were restored. Despite this, he has appealed. Given the result of the review the issue before me is whether there is any basis for hearing the appeal.

The Case for Mr Turner

[6] While clearly Mr Turner does not challenge the ultimate result of the review, through his counsel, Mr Forster, he nonetheless challenges the reviewer’s comment highlighted in [3] above that she accepted Dr Du Plessis’ evidence that Mr Turner did not have a brain injury. In addition, Mr Forster attacked not only the evidence given by Dr Du Plessis, but the mode by which it was admitted by the reviewer and sought findings from the Court on the following matters:

50. It is requested that this Court decides that the principles of the Evidence Act must apply at review hearings.
51. It is requested that the Court provide clear guidance in relation to the expected conduct of hearings by Reviewers in relation to the principles of natural justice.
52. It is submitted that this Court decides that when the principles of the Evidence Act and natural justice were not complied with at the review hearing, it has the discretion to decide whether or not to admit the evidence, and decides to exclude Dr Du Plessis evidence.

[7] As a result, Mr Forster submitted:

53. ... the review decision must be quashed. It is requested that this Honourable Court exercise its discretion and decides that the appellant has cover for his brain injury.

[8] In reply submissions filed following the hearing at the appeal, Mr Forster further developed the arguments presented orally at hearing regarding the significance of the findings made by the reviewer and disputed any suggestion that the appeal was moot. In particular Mr Forster now submits that either the reviewer had jurisdiction to make a cover decision, or she did not and thereby exceeded her jurisdiction. In either case it is Mr Forster’s submission that Mr Turner should be able to challenge the finding made. In Mr Forster’s submission the decision cannot be moot because the decision of the reviewer is binding and as a result Mr Turner must be entitled to challenge the review decision.

Discussion and Analysis

[9] It is manifestly clear, given the result at review and notwithstanding Mr Forster’s submission to the contrary, any appeal by Mr Turner is moot. As Fogarty J observed in Sinclair v Accident Compensation Corporation[1]:

The common law courts do not adjudicate upon academic issues. There has to be real consequence.[2]

[10] The principles surrounding moot issues at appeal were considered in some detail by the Supreme Court in R v Gordon-Smith[3]. The Court held, relying on R v Secretary of State for the Home Department ex parte Salem[4] the reluctance to declair moot issues is not a matter of jurisdiction but one of judicial policy, and as such confirmed:

In general, Appellate Courts do not decide appeals where the decision will have no practical effect on the rights of parties before the court in relation to what has been at issue between them at lower Courts.
...
But in circumstances warranting an exception to that policy, provided the Court has jurisdiction, it may exercise its discretion and hear an appeal on a moot question.[5]

[11] In R v Gordon-Smith the Court went on to exercise its discretion in favour of hearing the appeal on the basis that:

[29] In summary, the Court has jurisdiction to hear the appeal but must exercise its discretion on whether to do so because the issue is moot. The issue raised by Ms Gordon-Smith’s application is one of public importance which meets the statutory criteria for a grant of leave. The nature of the issue is closely analogour to, if not actually, one in public law, so that Salem applies. The question can be decided in the present appeal in a context which will avoid the disruption to a trail that would otherwise arise. Given that the issue potentially concerns every criminal jury trial, it is highly desirable that the correctness of the Court of Appeal judgment on the point be reviewed promptly.

[12] The type of considerations identified by the Supreme Court in that case are not present in this appeal, and there is no basis for exercising my discretion to revisit the issues in the present case as Mr Forster seeks.
[13] In particular the submissions made on behalf of Mr Turner, particularly those on reply, made by Mr Forster not only fail to address the substantive result of the review but the findings of the reviewer in their proper context. Specifically the primary sentence in the review decision that Mr Forster finds objectionable does not provide any basis for revisiting how the reviewer came to accept Dr Du Plessis’ evidence. First, Mr Forster is concerned that the sentence meant that the review decision now stands as a decision declining Mr Turner cover for a mental injury and whether that was an issue properly before the reviewer or not Mr Turner must now be given a chance to challenge that outcome. However as Mr Hunt for the Corporation submitted at the hearing, the review decision does not have that effect and the Corporation would be quite wrong to attempt to rely on it as standing for such an outcome. Instead, it is clear that the issue before the reviewer was whether the Corporation was correct to suspend Mr Turner’s entitlements. Cover was not in issue. It had already been confirmed prior to the hearing that cover had not been revoked, nor was there any issue with the extent of cover. There was in fact no dispute that because Mr Turner has cover under the Accident Compensation Act 1982, he has cover for the physical and mental consequences of his injury. Separate cover for mental injury was accordingly never required nor applied for, and this is reflected in the review decision.
[14] The reviewer’s statement regarding Dr Du Plessis’ evidence is in any event not as clear as Mr Forster would have it. While in the overall context of the decision the comment was probably not necessary given the reviewer’s other conclusions that Mr Turner continues to suffer from the ongoing mental consequences of his injury, the reviewer did not ultimately say that Mr Turner does not have a mental injury, and given the ultimate findings of the reviewer it is clear that the term “brain injury” is not used as a synonym for mental injury. Instead at its greatest extent the reviewer has concluded only that there was no [physical] evidence of a brain injury.
[15] Looking at the decision as a whole, the reviewer has clearly considered the appropriate issues in reaching a robust decision in favour of Mr Turner. As a result there is therefore no basis in taking a forensic approach to artificially attempt to consider whether I would have treated Dr Du Plessis’ evidence in the same way as the reviewer when ultimately nothing turns on the outcome.
[16] Given my position on that part of the reviewer’s decision objected to by Mr Forster there is therefore no basis for using the present appeal to attempt to set some form of guidelines for how reviewers are to conduct hearings and address evidence before them.
[17] Although I understand the frustration expressed by a number of claimants appearing in review hearings, that the process at the review hearings and the conduct of reviewers generally is not subject to appellate scrutiny in this Court, the attempt to utilise the present appeal for that purpose is misconceived.
[18] The jurisdiction of reviewers, how they are to conduct hearings and how they are to make their decisions, is set out in sections 140-145 of the Accident Compensation Act 2001. It is not the place of this Court to attempt to proscribe this jurisdiction. Instead, as I have set out on several occasions, the legislation is clear that appeals of decisions of reviewers to this Court are by way of rehearing. Matters relating to procedure at the review hearing will in general have no bearing on the outcome of appeals. Instead, on appeal, judges in this Court consider the substantive issues afresh on the basis of the evidence presented at review and any other evidence subsequently admitted in the course of hearing the appeal. As a result, in many cases this will mean that on appeal, the issues are in fact quite different from what they were at review.

Result

[19] For the reasons set out above, I therefore am satisfied that there is no basis for revisiting any of the conclusions reached by the reviewer or otherwise attempting to prescribe guidelines for the conduct of reviews through the medium of the present appeal.

Decision

[20] The appeal is dismissed. There is no issue as to costs.

Judge L G Powell
District Court Judge

ACR 540-10 Turner.doc(vr)

[1] [2013] NZHC 374

[2] At [23]

[3] [2008] NZSC 56; [2009] NZLR 721

[4] [1999] UKHL 8; [1999] 1 AC 450

[5] [2008] NZSC 56; [2009] 1 NZLR 721 at 725-726 pragraph [16]