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Accident Compensation Cases

Garlick v Accident Compensation Corporation (DC, 16/05/05)

Judgment Text

DECISION OF JUDGE J. CADENHEAD ON LEAVE TO APPEAL 
Judge J. Cadenhead
[1]
The appellant has sought leave to appeal against the decision of Judge J.D. Hole dated 19 March 2004. 
[2]
The issue before Judge Hole was whether the reviewer was correct in upholding the respondent's decision of 31 March 2003, which advised the appellant that his cerebral problems were not due to his accident on 21 December 1990. 
[3]
Judge Hole was satisfied, after having perused the various medical reports, that it had not been established there was a pathological connection between the injuries of the appellant sustained in that accident, and the cerebral problems currently suffered by the appellant. 
[4]
Judge Hole found that the evidence established that the effects of the accident were unlikely to have caused the problems currently experienced by the appellant. 
Brief Statement of Facts 
[5]
The appellant was involved in a road traffic accident on 21 December 1990. He was riding a motor cycle which collided with a motor vehicle, which undertook a U-turn in front of him. As a result of this accident, he sustained injuries including concussion, compound fracture of the left femur, a fractured right ankle and a fractured right wrist. 
The Decision 
[6]
Judge Hole considered the medical reports of Mr R.W. Hornbrook, a neurologist, Dr John Crawshaw, a consultant forensic psychiatrist, the neuro-psychological assessment of Miss Nightingale, a clinical psychologist, the report of Miss Williams, a consultant clinical psychologist, and a report by Mr Wallace, a neurologist. 
[7]
His Honour summarised the medical reports, and this summary is set out at paragraph 19 of his decision: 
“19.
Having analysed the various medical reports, a number of factors emerge: 
(i)
The 2003 MRI scan showed no signs of a physical head injury relating to the 1990 accident. 
(ii)
Some of the psychological problems now presenting were already apparent prior to the accident. 
(iii)
There are also post-accident factors which seem to have had some detrimental effect on the appellant's psychological wellbeing. 
(iv)
In some respects there has been an improvement in the appellant's mental condition since the 2000 report. 
(v)
The neuro-psychometric tests are not universally regarded as a good diagnostic tool to determine causation. 
(vi)
The Crawshaw report was based on the Nightingale report. As a psychiatrist (and not a psychologist) Dr Crawshaw was attempting to bring his concerns to the attention of the respondent. He was not attempting an absolute neuro-psychological diagnosis. ”
[8]
His Honour then drew the following conclusion: 
“20.
From a careful study of the various medical reports, I am not satisfied that it has been established that there is a pathological connection between the injuries and the cerebral problems currently suffered by the appellant. The ‘but for’ test, on its own, is insufficient to establish the requisite causal connection. Furthermore, it seems that there were already asymmetrical difficulties in existence at the time of the accident. Whether the accident exacerbated these is not known. However, it is clear that the injury sustained in the accident was a relatively minor one. The evidence establishes that it is unlikely to have caused the problems currently experienced by the appellant. 
21.
As a matter of law, in order to succeed with this appeal, the appellant was obliged to establish that the cause of his current problems was the accident. Whilst this Court has significant sympathy for the appellant and his problems, the appellant has not managed to establish the requisite causal relationship between the accident and the current problems. 
22.
Accordingly, the appeal is dismissed. ”
The Appellant's Submissions 
[9]
The appellant's grounds for appeal are, no reference was made to his post traumatic stress disorder, no comment was made to M/s Williams about his vitriolic and abusive demeanour, and inadequate consideration was given to the executive functioning. 
[10]
The appellant alleges that Judge Hole ignored ss 36 and 21 of the Act. The appellant contends that he has a mental injury, which includes psychosis, aggression, anxiety and depression 
[11]
The appellant also alleges no consideration was given to ss 85 and 88 (the Act being unspecified) and that he is physically unable to perform his previous work tasks due to ankle and wrist injuries. The Corporation had given no consideration to vocational retraining. 
Decision 
[12]
Judge Hole, after a consideration of the medical reports, came to a view that the appellant could not show there was a causal nexus between his accident of 21 December 1990 and his present symptoms. It was essential that a condition precedent to liability that the appellant was able to show such a causal nexus on a basis of probability. 
[13]
It seems to me that Judge Hole asked himself the right questions on the issue of causation, and then determined that issue by the application of the medical reports, and the facts in arriving at the conclusion that the appellant had not established the causation issue to a balance of probability. This was a factual finding. 
[14]
I cannot see that there is any point of law that could properly be stated for the High Court in this case. 
[15]
I do not think that there is any issue that is capable of bona fide and serious argument for consideration by the High Court. 
[16]
For the reasons that I have given, I dismiss this appeal. 

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