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Accident Compensation Cases

Pitkethley v Accident Compensation Corporation (DC, 01/12/03)

Judgment Text

Judge M J Beattie
The appellant has applied for leave to appeal to the High Court against the decision in this Court of His Honour Judge A W Middleton issued on 7 May 2003 under no: 79/03. 
The Court has received written submissions from Miss N Ebert, counsel for the appellant in support of that application, and from Mr C J Hlavac, counsel for the respondent opposing the application. 
The issue which was for determination in the appeal before His Honour was whether the respondent's decision of 28 December 2001, declining to meet the treatment costs of a cochlear implant for the appellant was correct. It was the respondent's reason for asserting that the appellant was not entitled to have those treatment costs met, that the need for the implant arose from the appellant's pre-existing otosclerosis rather than from the injury caused by medical mishap for which she had been granted cover. 
The injury for which cover was granted was the loss of remaining hearing in the appellant's left ear arising from neuro-surgery carried out on 2 November 2000 for the removal of a memingioma in the appellant's skull. At the time of this operation the appellant had partial hearing in her left ear and no hearing in her right. 
In his decision the Learned Judge noted the medical evidence from the specialists who examined and treated the appellant for her hearing problems both before and after the operation of November 2000 and he received evidence of the fact that the appellant's otosclerosis was a condition of long standing and which appeared to be getting gradually more extensive. His Honour also noted that the appellant had been assessed as being suitable for cochlear implant prior to the surgery at which the misadventure occurred. 
His Honour noted the definition of personal injury in section 29 (2) as not including personal injury caused wholly or substantially by a gradual process disease or infection unless it was personal injury of the kind described in section 39 (2) (d), (e), (f), or (g). 
His Honour then determined that the medical evidence established the serious pre-existing condition and he found that the medical evidence established that the need for the proposed treatment arose wholly or substantially from her pre-existing condition and not as a consequence of the injury for which she had been granted cover. 
The finding that His Honour made was clearly a finding of fact based on the medical evidence that was presented to him and was a finding which was open to him on that medical evidence. No question of law can arise in those circumstances. 
In her submissions in support of the application for leave, Miss Ebert submitted that as his Honour had determined that the onus of proof was on the appellant to establish that the injury requiring the claimed treatment was not caused wholly or substantially by her pre-existing condition, that was a ruling of law and in respect of which counsel submitted the Learned Judge was in error. She submitted that there was the need that this issue of where the onus of proof lay to be determined by the High Court. 
Mr Hlavac, in his response, submitted that the law in respect of who has the onus of proof is now well settled and he referred to the High Court decisions of Fowlie (AP50/00 Wellington Registry) and McDonald (AP2/02 Christchurch Panckhrust J). Mr Hlavac submitted that the course taken by this Court in its decision in Jackson (149/01) should be followed. That was an application for leave to appeal where the claimed error as to on whom was the onus of proof. The Court refused leave on the grounds that the matter was now well settled. 
In submissions in final reply Miss Ebert submitted that the High Court decisions of Fowlie and McDonald had not settled the question of where the onus lay and she further submitted that this Court's decision in Jackson could not be regarded as being authoritative on the issue. 
It is unfortunate that Miss Ebert was not aware of the High Court decision in Jackson (AP404-96-01 Justice Priestley) which was the decision on the application for special leave following this Court's refusal to grant leave in the decision cited by Mr Hlavac. In that decision His Honour specifically identified that the decision of Justice John Hansen in Fowlie had effectively settled the question relating to the onus of proof and His Honour specifically approved a subsequent decision of this Court in Wakenshaw (64/01) where again the question of on whom did the onus of proof lie was stated to be in conformity with the decision of Fowlie. That decision of Wakenshaw was also sought to be taken on appeal to the High Court and in his decision on the question of whether special leave should be granted His Honour Justice Priestley again confirmed the decision he had made in his earlier decision of Jackson and on the onus issue he stated that it was not a point of law capable of argument. 
The appellant has applied to this Court pursuant to section 165 of the Accident Insurance Act for leave to appeal, that provision gives a party to an appeal the right to appeal to the High Court where it is contended that the decision is wrong in law. On the first ground raised by counsel for the appellant as to whether the injury resulting from the medical misadventure was a material cause of the injury for which treatment was sought, I find is wholly a question of fact, as I have previously indicated, and therefore cannot be advanced as a ground for granting leave to appeal. 
The second point raised by counsel, whilst certainly a question of law, being on whom the onus of proof lies, is now so well settled as to be beyond controversy and I choose to adopt and follow the reasoning I gave in the decision in Jackson (149/01) where the question of law was the onus of proof and in respect of which I stated as follows: 
“If this question were a live issue or a matter of controversy, it would be a question which the appellant ought to be entitled to have the High Court consider and rule on. However, I consider that merely because it is a question of law does not entitle an appellant to the granting of leave where that question is one which is settled and not a matter of controversy. I consider that this question is so settled. A recent restatement of the onus of proof being visited upon the appellant has been stated by the High Court as recently as October 2000 where his Honour Justice John Hansen did so in the decision of Fowlie (AP 50/2000, Wellington Registry). ”
For the foregoing reasons therefore the matters raised in this appeal do not give rise to a question of law which ought to require determination by the High Court and therefore leave to appeal is refused. 

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