Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Ali v Accident Compensation Corporation (DC, 02/08/05)

Judgment Text

DECISION OF JUDGE J. CADENHEAD AS TO LEAVE TO APPEAL TO THE HIGH COURT 
Judge J. Cadenhead
[1]
This is an application for leave to appeal to the High Court against the decision of Judge Beattie dated 8 April 2005. 
Background of Facts 
[2]
The issue before His Honour was whether the respondent's decision of 8 September 2004, whereby it declined to pay certain treatment expenses consisting of X-ray costs, radiotherapy and chemotherapy treatment, which treatment expenses were incurred by the appellant in relation to a malignant sarcoma tumour diagnosed in April, was correct. 
[3]
In an appeal decision dated 30 June 2004 I gave cover for the costs of surgery following an initial exploratory biopsy. The reasons for this were based upon the following dicta from my decision: 
“I find as a fact that the cover of the 26 March 2003, also applies to the surgery of 21 May 2003. If this is the case until that cover was revoked or set aside, if the appellant had bona fides acted upon it, and incurred expenses as a result of such reliance then he is entitled to be recouped for those expenses incurred before notice of any revocation …  
I decide that the appellant had cover for the operation performed: the initial decision was wide enough to admit the costs of the exploratory biopsy and subsequent operation … It is clear that the principle that I have relied upon, upon a perusal of the authorities, is only to apply to a factual consideration of the case, and is a principle to avoid the consequences of injustices arising from defective administrative law decisions …  
I would allow the appeal and hold that the appellant is entitled to the operation costs ”
[4]
Judge Beattie was concerned with the extent of the scope of my decision. The appellant was contending that my decision gave him cover for the malignant tumour, which extended not only to the operation costs, but, also the subsequent treatment costs associated with the tumour after it had been discovered. 
The decision of Judge Beattie 
[5]
Judge Beattie at the outset found as a fact that the malignant tumour, which was diagnosed on 30 April 2003, was not a medical condition which had been caused by the bang on the head, which the appellant had suffered on 10 October 2002. It therefore followed that the finding that the appellant was not entitled to cover for the malignant tumour under the provisions of the legislation was correct. 
[6]
His Honour said that he had considered my earlier ruling and found that there was nothing in that decision which would signify a ruling contrary to what he had expressed. He said that the issue before me was whether the respondent was obliged to fund the surgery carried out, which surgery, inter alia, included the excision of the malignant tumour. This was not a decision of whether or not cover was to be granted under the legislation for the medical condition. 
[7]
The scope of that decision was that approval of elective surgery included the surgery that was necessitated by the finding of the tumour, and which was carried out on 21 May 2003. All the parties had acted bona fides and that in those circumstances the principles of administrative law identified applied and that the costs incurred, for which approval had previously been given, could be recouped as they had been incurred before any notice of revocation of the approval given. 
[8]
Judge Beattie said that it followed from my decision that when the respondent notified the appellant on 1 July 2003 that he was not entitled to cover for the tumour or entitlements with its treatment, that the administrative law principle previously indicated was no longer applicable. He said that on the facts as they had unfolded subsequent to the letter of 1 July 2003 the appellant was obliged to have treatment for the malignant condition, but this treatment must be taken to have been understood as not being able to be the subject of reimbursement in the light of the respondent's notification. Judge Beattie said that the substance of my decision was solely to the effect that the appellant was entitled to be reimbursed for the operation costs and that this decision did not extend to granting of cover for the malignant tumour. 
[9]
It followed therefore that the treatment costs associated with the non-covered injury could not be met under the provisions of the Act. For the respondent to attempt to do so would be ultra vires being outside the ambit of its statutory authority. Judge Beattie held as a fact that my decision did not and could not provide the appellant with cover for the malignant tumour. For those reasons the respondent was correct to decline payment of the treatment costs. 
The Submissions of the Appellant 
[10]
The appellant submits that my decision dated 30 June 2004 decides the matter of cover and that the decision in his favour for the cost of the operation was wide enough to cover the cost of treatment. The submission is made that if the respondent declined its liability to pay the bills sought, then it should have revoked the cover under a new decision. This new decision would have had to have been notified to the appellant. No revocation had ever been sought. The submission was that the cover was still valid and binding upon the respondent. 
[11]
The submission of the appellant was that the treatment costs were associated with the surgery and were an integral part of it. The legislation did not require two covers: one for surgery and another cover for the treatment. 
Conclusion 
[12]
In my view the decision of Judge Beattie was a straightforward application of applying the facts to the scope of the decision made by myself. It was recognised in my decision that the appellant could never recover in respect to the condition of a malignant tumour. However, before the existence of that malignant tumour was ascertained cover had been granted for the costs of a biopsy and operation. Those costs were incurred before the cover was revoked. In all circumstances, for the reasons that I gave in my decision, I held that the appellant was entitled to the costs of the operation in reliance of the earlier decision pertaining to cover. In my view, Judge Beattie examined the factual circumstances and held that the scope of my decision did not extend to treatment costs occasioned by the malignant tumour. 
[13]
I am of the view that this was a factual matter and does not involve any serious questions of law that should be stated to the High Court. For the reasons given I decline leave to appeal to the High Court. There is no order as to costs. 

From Accident Compensation Cases

Table of Contents