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Accident Compensation Cases

Waitaki Transport Ltd v Accident Compensation Corporation (DC, 23/09/02)

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 31 October 2001 under number 300/2001. 
[2]
The issue before the Court was whether the first respondent was correct to determine that the second respondent satisfied the criteria under s 7(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992 which entitled him to cover for a gradual process injury. 
[3]
The appellant's grounds for the application for leave to appeal are that His Honour erred in law: 
[a]
In finding that the first respondent had discharged its obligations to property investigate the claim; 
[b]
In finding that a gradual process injury is “essentially a medical question” when the determination of whether a condition is a gradual process injury involves an enquiry into both medical issues and factual issues; 
[c]
In finding that the evidence of the second respondent's activities subsequent to the claim are not relevant when they do have a bearing on the veracity and extent of the second respondent's version of his activities; 
[d]
In accepting the Reviewer's questioning of the second respondent and taking the view the second respondent had given acceptable responses for the Reviewer's questions when the second respondent at the review hearing was not sworn as a witness and the appellant had no opportunity to examine him. 
[4]
In his decision, Judge Beattie recorded details of the medical evidence and evidence relating to the nature of the second respondent's work. His Honour concluded that the evidence as produced provided an accurate description of the injuries sustained by the appellant which satisfied the causative characteristic within the meaning of s 7(1)(a). 
[5]
His Honour found as a fact that he did not accept the appellant's criticism of the manner in which the first respondent had investigated the claim. 
[6]
While His Honour noted that the issue of whether the injury is a gradual process is “essentially a medical question”, he also stated that he had to rely on the specialist's evidence to demonstrate the nature of the characteristic which brought the claim within the criteria of s 7. 
[7]
His Honour found as a fact that there was no evidence of any non-employment activities which could have been causative in the appellant's symptoms. 
[8]
His Honour made no reference to the issue now submitted by the appellant that the appellant was denied the opportunity to examine the second respondent in the course of the review hearing. His Honour makes no reference to the submission that the second respondent had answered the Reviewer's questions without having been sworn as a witness. 
[9]
I do not consider that His Honour's decision relied exclusively on the medical issues when he found as a fact that the appellant had not provided evidence which demonstrated some non-employment activity which had materially contributed to the second respondent's back injury. 
[10]
I consider that His Honour's decision clearly identifies that he considered both the medical and factual issues from which he was satisfied that the Reviewer's decision should be upheld. I do not consider that that finding amounts to an error of law. 
[11]
It is clear from the evidence given to the Reviewer that the appellant provided evidence of the second respondent's activities in the period after his claim had been lodged. His Honour made a specific finding that those activities did not involve the same type of activity as occurred during the second respondent's employment with the appellant. That again was a finding of fact and does not raise a question of law. 
[12]
I do not accept the appellant's submission that the second respondent was not sworn as a witness at the review hearing. An examination of the transcript of evidence shows that in opening the proceedings the Reviewer required the second respondent to be sworn as a witness. 
[13]
While the second respondent did not give formal evidence at the request of the appellant's counsel, the Reviewer asked the second respondent to clarify some matters for him and asked him about his involvement in rowing and horse training to which the second respondent gave answers. Nothing in the transcript of evidence thereafter suggests that counsel for the appellant sought the leave of the Reviewer to examine the second respondent either on the issues raised by the Reviewer or on any other matter. 
[14]
I therefore consider that it is not now open to the appellant to raise that challenge as an alleged error in law. Certainly it does not appear to have been raised at the hearing of the appeal. 
[15]
Accordingly for the reasons I have stated, I do not consider that there is any issue of law which requires determination by the High Court and the application for leave to appeal is therefore declined. 

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