Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Mitchell v Accident Compensation Corporation (DC, 02/04/04)

Judgment Text

DECISION OF JUDGE J. CADENHEAD ON LEAVE TO APPEAL 
Judge J. Cadenhead
[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 17 April 2002. In addition, the appellant also seeks leave to appeal out of time. 
Background of Facts 
[2]
The issue in the appeal in front of Judge Beattie was whether the osteoarthritic condition which was present in the appellant's right knee was attributable to the injury that she suffered in September 1986. 
[3]
On 19 September 1986, the appellant, then aged 37 years, suffered an injury to her right knee when she vaulted over a fence and her foot slipped and her right knee gave way. The appellant underwent arthroscopy to her right knee on 23 April 1997. 
[4]
The appellant was granted cover for the incident to her knee on 19 September 1986, and the issue that confronted His Honour was whether or not the suspension of entitlements to the appellant by the respondent was correct. 
[5]
A perusal of the decision shows that Judge Beattie considered in depth the medical reports that supported the views of the appellant, and those medical reports that supported the views of the respondent. 
[6]
As His Honour observed there were extensive submissions on the medical evidence, and counsel for the appellant had relied principally on the reports of Mr Hooker, Mr Grayson, Dr Chapman and Mr Fenton. 
[7]
Counsel for the respondent, on the other hand, has relied upon the reports of Mr Dawe, Dr Wong, Mr Brown and Mr Allen. 
[8]
In the final analysis of the medical evidence, His Honour said at paragraphs 38 to 41 the following: 
“[38]
In the final analysis I find that the assessment made by Mr Allen in his report of December 1998 and confirmed in his report of February 2001 after he had seen and considered contrary opinions which had been advanced, is the preferred evidence in this case. 
[39]
That evidence is to the effect that the appellant is suffering, now increasingly, from the degenerative changes affecting the medial compartment of her knee, those changes being clear and discernible at the time of her accident and possibly being accelerated by the happening of the subsequent tear. The medial compartment of the knee and the lack of cartilage is all contributing to the pain associated with the joints wearing on each other and it is that which is causing the present swelling and tenderness. 
[40]
That is a consequence of the degenerative process progressing as it has over the last 15 years and that whilst the injury of 1986 may have assisted in the acceleration of the degenerative process, I am satisfied on the evidence that it did not cause that degenerative process to begin and therefore that degenerative condition cannot be said to be caused by the personal injury by accident for which the appellant was granted cover. 
[41]
In those circumstances therefore I find that the respondent's decision to suspend entitlements, for the reason that the appellant's current disability as it presented at the time of the decision was not attributable to the personal injury for which cover had been granted, was correct. ”
[9]
Pursuant to s 162 of the Act, the appellant was required to file her application for leave to appeal to the High Court within 21 days of the District Court's decision. The appellant did not file her application for leave to appeal, in respect of this proceeding, until 15 July 2003, which was almost fifteen months after the Judge's decision of 17 April 2002. 
[10]
An earlier application for leave to appeal was filed on behalf of the appellant by Mr John Miller, barrister, and this application for leave to appeal to the High Court was dated 10 November 2002. Apparently, Mr Miller is no longer acting for the appellant, but that application for leave to appeal was also out of time. 
[11]
The appellant herself had written to the registry on 15 July 2003, and this letter was treated as a notice of application to appeal to the High Court. 
The Submissions of the Appellant 
[12]
The appellant submits that at the time she was not well, and was not aware that she had only 21 days in which to apply to the High Court in respect to an application to appeal. She says she was not advised by the legal firm that had previously handled her claim in the District Court. She thought that she had three months to lodge an appeal, as that was the case in respect to accident compensation review hearings. 
[13]
She said at the time that the decision was delivered, she was in a distressed state. She had suffered from financial hardship, which the ceasing of entitlements had led to. These financial hardships included a threat of a forced sale of her family home, and further costs of $70,000. 
[14]
The appellant submits that the discretion to allow the appeal in these circumstances should be allowed. She said that she finally made contact with Mr John Miller, barrister, at the expiration of the three month period. She said he was a busy man, and it took a further six months for him to collect all the materials, consider it and make a submission to the Court. She says it has taken her a further fifteen months to try and find out how she should be able to submit her facts to the Court for a High Court appeal. 
[15]
The appellant contests the interpretation that Judge Beattie put upon the medical reports and evidence that was submitted before him. The appellant analyses in detail the medical reports, and her submission is that the Judge was incorrect when he came to a view that her present symptoms were not caused by the 1986 accident. 
[16]
The appellant notes that her accident occurred in 1986, and that cover was accepted under the 1982 legislation. The 1982 legislation does not include the words “wholly and substantially” in respect to the ageing process. She submits that the 1998 Act does not govern this particular issue. 
[17]
The appellant submits that Judge Beattie failed to draw proper inferences from the medical evidence. She submits that the degeneration present in her knee in May 2000 was not exclusively due to the ageing process and wear and tear. The submission of the appellant is that the medical evidence indicates that her ongoing state of degeneration was the result of the accidental injury suffered in 1986, and which had cover under the 1982 Act. 
Decision 
[18]
In my view, there is no point of law that may be stated in respect to the proposed appeal. His Honour Judge Beattie made a decision based upon the facts, and after a consideration of the relevant medical evidence that was tendered to him. This was a case that was determined on its own particular facts, and the Judge assessed those facts against the medical evidence. I accept that there are differing medical opinions concerning the issue confronting His Honour. His Honour was called upon to decide, after considering the factual background, which medical opinion he preferred. I cannot identify any relevant issue of law arising in this case: I can identify, however, differing medical opinions. 
[19]
The case of Teen (High Court, Wellington, CIV-2003-485-1478, judgment Wild J, 11 November 2003) came to a view that the interpretation of medical evidence against the background of facts did not necessarily amount to a question of law that could be stated for the High Court for consideration. 
[20]
Judge Beattie's decision was based simply on an assessment of causation. He did not invoke the provisions of the 1998 legislation in arriving at this decision. He determined the causation issue solely on the facts and medical reports that were put before him. I agree that the test under the 1982 legislation and the 1998 legislation in respect to the ageing process is different, and that this particular accident attracted the provisions of the 1982 legislation. However, Judge Beattie did not seek to invoke the section of the 1998 legislation in reaching his decision. His decision would have been the same irrespective of whether the background was against the 1982 legislation or the 1998 legislation. Accordingly, I am of the view that there is no question of law involved here, and I decline to grant leave to appeal. 
[21]
In respect to the extension of time within which to bring the appeal, I am doubtful I have the power to grant such an extension. This power is reposed in the High Court. However, I do not have to decide that issue as I have declined leave on the substantive ground that there is no legal issue fit to be stated for the High Court. 
[22]
For the reasons that I have given, the notice of application for leave to appeal to the High Court is declined. There will be no order as to costs. 

From Accident Compensation Cases

Table of Contents