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Accident Compensation Cases

Sarten v Accident Compensation Corporation (DC, 12/05/04)

Judgment Text

J D Hole Judge
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge P. F. Barber issued on 15 January 2004. 
The issue in that appeal was whether the appellant could prove that he had sustained a personal injury by accident as a result of his coming into contact with toxic chemicals or through his inhalation of toxic gas or fumes. He needed to establish a causal relationship between his persistent symptoms of ill health and his contact with toxic substances. 
It was held that there was no proven linkage between any accident and his health problems. More specifically there was no proven connection between cannisters and their unknown contents with toxicity; nor between his residential environment and his poor health. The appeal was dismissed. 
Application for leave to appeal 
Section 162 of the Act states; 
“A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. ”
Thus appeals to the High Court must involve a point or points of law. There is no appeal to that Court on factual matters. 
The proper approach to the issue as to whether leave to appeal should be granted was stated by Doogue J in Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation and Stewart Burns (High Court, Wellington, AP 266/00, 6 July 2001). His Honour said that before special leave to appeal was granted there had to be a point involved in the proposed appeal. This point had to be capable of bona fide and serious argument. His Honour then went on and considered what was a point of law: 
“What is a point of law? 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards v Bairstow [1995] 3 All ER 48, 57; P & O Services (NZ) Ltd v ARCIC
Even where, as in this case, an appeal is limited to questions of law, a mixed question of law and fact is assailable as a matter of law: CIR v Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6. [7] It is well settled that a decision-maker's treatment of facts can amount to an error of law. 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: Edwards v Bairstow, 57. 
The Court of Appeal in Lang v Eagle Airways Ltd [1996] 1 ERNZ 574, 576, cited Edwards v Bairstow in support of the following statement: 
If those conclusions were not reasonably open to the Judge then this Court can rule, as a matter of law, that they are unsustainable and should be set aside …  
Whether or not particular evidence is relevant to a particular issue is a question of law: Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641, 651-652. ”
The appellant set out the points of law upon which he relied in a memorandum addressed to the Registrar dated 5 March 2004. Most of the matters raised constitute evidential findings. However, the conclusions reached by the Court were obvious on the evidence before it. In these circumstances they which are not appealable. Those points are: 
The Court's interpretation of the medical reports; 
The Court's failure to acknowledge the investigations being carried out in the appellant's residential neighbourhood into contamination of it; 
The Court's consideration of environmental reports; and 
Generally, the Court's reluctance to appreciate the seriousness of the dangers of contamination and poisonous substances. 
The Court's refusal to issue subpoenas against the Reviewer and the Minister for the respondent could be argued as constituting a point of law. The refusal occurred as a result of an interlocutory application made by the appellant. The appellant had advised the Court that he wished to question the Reviewer about how she had reached her decision and her avoidance of the media. He wished to question the Minister as why she had appointed the Reviewer to that position. There was no need for the appellant to question the Reviewer as to how she had reached her decision as it was the written decision itself that was to be subjected to scrutiny when the appeal was heard. Accordingly any ancillary reasons not disclosed in the written decision would be irrelevant. For the same reason any evidence which the Minister could give on the Reviewer's appointment would not be material in considering if the Reviewer's decision was correct: it is the decision itself which matters; not the person who made it. 
This issue, then, is a legal point capable of appeal to the High Court. However, it is not capable of serious or bona fide argument. The issue is one which is well settled in law and was correctly decided. 
The appellant has raised no issues involving serious or bona fide argument. It follows that there is no reason to grant leave to appeal. Leave to appeal is declined. There is no order as to costs. 

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