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Accident Compensation Cases

Davey v Accident Compensation Corporation (DC, 08/03/02)

Judgment Text

APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge P F Barber
[1]
The appellant has applied for leave to appeal to the High Court in respect of a decision of this Court between the above parties from His Honour Judge Beattie dated 27 August 2001. 
[2]
The issue before Judge Beattie was whether the respondent was correct, by its decision of 22 December 1999, to suspend all entitlements to the appellant on the grounds that his condition was not attributable to the personal injury by accident for which he had been granted cover. That accident took place on 3 February 1997 when the appellant was walking in a car-park at a shopping mall and a vehicle reversed out of a car-park space and struck him above the knee of his right leg, and he was pushed over and fell down. 
[3]
In his said decision Judge Beattie, carefully and comprehensively, reviewed the medical evidence. He commenced his Reasons for Decision by noting that the question of whether entitlements ought to continue under the Act is very much dependent on the medical evidence. He then referred again to key aspects of the medical evidence and concluded: 
“[35]
Accordingly, I find that the evidence clearly points to non-injury factors as causing the appellant's present condition, be it from the severely arthritic hip or the moderately severely arthritic knee. The bang that he suffered in the accident may well have stirred things up but I find there is no evidence of any continuing effects of injury suffered in the accident …  ”
The Submissions for the Appellant/Applicant 
[4]
It is helpful to set out verbatim the very considered submissions of Mr Hall (in support of the present application) for the appellant, namely: 
“1.
There is a point of law. The reason for that is set out. They are: 
(a)
The District Court Appeal was dismissed and therefore upheld the decision of the Review Officer (Mr Winter). 
(b)
The decision of the Review Officer considered the factual evidence and certain competing medical evidence but applied what he considered was the appropriate case law stemming from a plethora of the decisions of the District Court relating to the Accident Insurance Act 1998 which was acknowledged by Counsel for the Appellant at the Review hearing. 
(c)
The application or construction or interpretation of any Act of Parliament must be a matter of law. 
(d)
The Review Officer cited at least twelve authorities to support his decision to reject the Appeal. 
(e)
Any examination of authorities is a matter of law, not a matter of fact. 
(f)
As Judge Beattie upheld the Review Officer's Decision, he has adopted its reasoning in the Judgment which relied on case authority. 
(g)
However, the Decision of Judge Beattie did not refer to authorities at all. He did not adopt or distinguish the various cases cited by the Review Officer. 
(h)
Really the Judgment of Judge Beattie was to analyse the competing medical reports provided at the Review Hearing and, of course, there is always a disadvantage for a lay person appearing in the District Court trying to analyse cases which with respect to the District Court have a wide variety of interpretation. 
2.
The District Court Judgment. As we have asserted above, the District Court came to the conclusion after considering all the written medical evidence and it is stressed that it was only written evidence tendered by a wide variety of specialists. 
3.
It is submitted that it was a point of law at part of the Judgment of Judge Beattie (para 28 on page 9) of the Judgment. The Judge commented on the adequacy of the experts' findings. He criticised (para 28) that he considered that Dr Burry and Dr Tait had propounded the Appellant's cause ‘and has stated in so many words that the Accident Compensation Corporation has a clear obligation to continue supporting the appellant’
4.
The Judge felt that ‘these comments are not helpful when this Court is required to weigh up the competing evidence’
5.
‘If a person is purporting to give evidence as an expert he (she) should be doing so with complete objectivity and without seeming to take sides, as to do so results in the loss of objectivity’
6.
There is evidence Judge Beattie strayed from his role in assessing the evidence. 
7.
There is a point of law involved when an Appellant Court (District Court) treats the Appeal as a rehearing and should not comment on the objectivity of the evidence tendered by two experienced and well qualified experts on the basis they had a common finding supporting the Appellant's case. 
8.
It is important in the Accident Compensation Corporation Review procedure that adverse findings against experts should not be lightly entered into and in essence accusing the advocates rather than experts. 
9.
This is an important point of law or otherwise the District Court and Review Officer would have to state clearly that any medical report obtained by ‘experts’ who were retained on contract by the Respondent or the Review Officer or the Judge is asked to rely on ‘in house’ doctors reporting to the ACC are always suspect because of the lack of objectivity. 
10.
The third point of law is quite straightforward. It is, as asserted above, any construction of an enactment is a point of law. If it is arrived at by an assessment of the facts, the facts and law merge and the simple point is made that in any case appearing before any Tribunal facts are produced and lead to a finding of law under a ‘code’
11.
The facts produce a ruling in law but they do not make the ruling a matter of fact. It is submitted, therefore, that leave should be granted on the following grounds: 
(a)
There is a point of law on the construction of Section 29. There is no evidence that the Appellant's condition was a result of the ageing process or infection. 
(b)
The adoption by Judge Beattie of the Review Officer's Decision did not take into account competing authorities. 
(c)
His findings on expert witnesses should be tested in the High Court of New Zealand. ”
I incorporate Ms Ahern's submissions for the respondent into my Reasons for Ruling below. 
Reasons for Ruling 
[5]
The statutory right to appeal to the High Court against a District Court decision issued under the Act is limited to questions of law, not fact, in terms of s 165 of the Accident Insurance Act 1998. The appellant must be dissatisfied with the District Court decision “as being wrong in law” before the appellant may, with the leave of the District Court, appeal to the High Court. Essentially, Ms Ahern submits for the respondent that the appellant has not identified any tenable question of law as arising from the said decision of Judge Beattie herein. Accordingly, the respondent opposes the appellant's said application. 
[6]
In Impact Manufacturing Ltd v ARCIC and Anor (AP 266/2000 High Court, Wellington Registry) Doogue J very helpfully (in my respectful view) covered the question “What is a point of law?” For present purposes, I record that whether or not a statutory provision has been properly construed or interpreted and applied to the facts, is a question of law. A mixed question of law and fact is assailable as a matter of law. A Judge's treatment of facts can amount to an error of law. However, there will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision. Whether or not particular evidence is relevant to a particular issue is a question of law. 
[7]
Doogue J also pointed out that unless the point of law which is to be involved in the proposed appeal is capable of bona fide and serious argument, it is hard to see how leave to appeal could be given. 
[8]
Ms Ahern noted that two issues were initially raised by the appellant himself in support of his application for leave, namely that the District Court did not follow dicta from an earlier District Court decision of Te Puna (117/99), and did not consider Dr O'Donnell's diagnosis. 
[9]
With regard to Te Puna, on the one hand Judge Beattie's dicta in that case was not binding upon him in the present case, and on the other hand, his decision in this appeal is not inconsistent with his comments in Te Puna. He had noted in Te Puna that the onus is on the appellant to establish that he is presently suffering from injury arising from accident. In the present case, Judge Beattie considered that question and made a finding of fact, based on the medical evidence before the Court, that the appellant was no longer suffering from the effects of his injury. Judge Beattie applied the appropriate test by considering whether the effects of the injury were ongoing. There is no error of law in relation to the test he applied. 
[10]
Further, it is clear that Judge Beattie took all the medical evidence into account in the present case, including the evidence provided by Dr O'Donnell. Judge Beattie took significant note of Dr O'Donnell's evidence and this is set out in detail in paragraph 18 of the decision, and is later referred to again in Judge Beattie's reasoning at paragraphs 31 and 32 of his decision in the present case. 
[11]
In any case, the clinical finding referred to in the submissions for the appellant does not establish a causal link between the appellant's incapacity and his injury; and it is merely one piece of medical data which Dr O'Donnell considered in order to reach his conclusion. Dr O'Donnell's opinion was that having considered all the information, he did not consider there to be a causal connection between the appellant's incapacity and his injury. It is clear from Judge Beattie's decision that he took account of all the medical evidence before him, including the evidence from Dr O'Donnell. Judge Beattie made a finding of fact based on the overall evidence and that finding was open to him. He applied the relevant legal test of whether there were any continuing effects of the injury. 
[12]
In terms of Mr Hall's submissions for the appellant, I certainly agree that the application or construction or interpretation of any Act must be a matter of law, and that an examination of case authorities is a matter of law. However, Judge Beattie did not need to refer to all relevant authorities, nor adopt nor distinguish the various cases cited by the Review Officer. 
[13]
The degree to which Judge Beattie needed to analyse competing medical reports was a matter of judgment for him. It was for him to decide on the adequacy of the expert evidence and he clearly weighed up all competing evidence in a judicial manner. There is absolutely no evidence that Judge Beattie “strayed from his role in assessing the evidence” as submitted for the appellant. Judge Beattie was perfectly entitled to comment on the objectivity (or lack of it) of the evidence. 
[14]
Mr Hall seemed to also be submitting that Judge Beattie should not have treated the case before him as a rehearing. However, s 158 of the Act makes it clear that these Accident Compensation appeals to the District Court are by way of a rehearing and that concept was in previous legislation. 
[15]
I can accept Mr Hall's submission that the facts produce a ruling in law and they do not necessarily make the Court's ruling a matter of fact. I agree that in construing s 29 of the Act (i.e. about the meaning of “personal injury”) a question of law arises, but there was evidence before Judge Beattie that the appellant's condition was a result of the ageing process or infection. 
[16]
There is certainly no particular reason why Judge Beattie's findings regarding the evidence of the expert medical witnesses should be tested in the High Court. 
[17]
None of the points of law referred to on behalf of the appellant, for the purposes of this application, are capable of bona fide and serious argument. 
[18]
It must follow that there is no tenable question or error of law which has arisen in the decision of Judge Beattie herein, so that the application for leave to appeal is hereby declined. In terms of costs on this application, I simply reserve leave to apply. 

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