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Accident Compensation Cases

Allen v Accident Compensation Corporation (DC, 08/08/02)

Judgment Text

APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
A W Middleton Judge
[1]
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 10 March 2000 under No. 35/2000. 
[2]
The issue before the Court was whether the appellant's physical condition and incapacity was causally connected to a personal injury suffered by accident in July 1974, for which the appellant had cover. 
[3]
Judge Beattie concluded that the appellant had failed to discharge the onus of proof that he was required to establish that his current condition was causally connected to the personal injury for which he had cover, and dismissed the appeal. 
[4]
The appellant's advocate submits that Judge Beattie was wrong in holding that the onus of proof rested on the appellant. The advocate submitted further, that an important issue in relation to the onus of proof arose out of the fact that the respondent had earlier destroyed a file which included information upon which the appellant had received a lump sum award for a permanent disability arising out of the 1974 accident. The submission is that that file, had it been available, may have indicated a causal relationship between the permanent disability and the ongoing symptoms. 
[5]
I find the appellant's submission that because of the destruction of the earlier file there was insufficient evidence upon which the Court could have made its decision is not supported by Judge Beattie's findings. In his decision Judge Beattie records the fact that Mr Cockerell, the Orthopaedic Surgeon whom the appellant had consulted from the time of his accident, was able to provide records and reports on x-rays taken at the time which, together with the further medical reports outlined in the decision, enabled the Judge to make the findings he did. 
[6]
The Judge's findings were based on the relevant medical reports to which he referred, and from which he concluded that there was no causal connection between the appellant's current symptoms and the 1974 accident. 
[7]
The question of the onus of proof in this type of appeal has been the subject of a number of appeals, including Atkinson v ACC, a decision of the Court of Appeal delivered on 9 October 2001 under No. CA 137/01. In that appeal the Court concluded that the normal rules applied and that the onus of proof remained with the appellant. A similar view was taken by Justice Priestley in Jackson v ACC, a decision issued on 14 February 2002 in the High Court at Auckland under No. AP 404-96-01. In that case counsel for the appellant had submitted that once cover had been accepted by the respondent the onus was on the respondent to demonstrate thereafter that it was entitled to suspend or cancel any entitlements. Justice Priestley then said: 
“I see no material difference between this elementary focus on whether the information or evidence establishes the nexus on the balance of probabilities at either the first level, where claimants seek cover from the respondent, at the second review hearing stage, or on the third rung of an appeal to the District Court. It is not the elaborate procedural game of who carries the onus which is determinative but rather whether the information and evidence justify a conclusion that a nexus has or has not, as the case may be, been established. Obviously a claimant will not gain cover if the information/evidence falls short of establishing a nexus on the balance of probabilities. This obvious proposition need not be obscured by recasting it as an onus. ”
[8]
I do not consider that the appellant has demonstrated that Judge Beattie erred in law in making his decision. The decision was based purely on the available medical evidence and was therefore a decision based on the facts. 
[9]
I conclude that on the basis of the authorities which have already considered the issue of onus of proof, there is no substantial question of law arising out of the appeal which justifies a referral to the High Court. The application for leave to appeal to the High Court is declined. 

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