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Accident Compensation Cases

Hawke v Fusion Insurance Services Ltd (DC, 05/10/06)

Judgment Text

J D Hole Judge
The appellant has applied for leave to appeal to the High Court against a decision of Judge Beattie dated 19 April 2004. 
The notice of application for leave to appeal states that the application is made on the grounds that the decision appealed against “is erroneous in law” in its interpretation and application of the following: 
whether an insurer can make a decision to suspend ongoing weekly compensation without undertaking a determination of incapacity under s 85 of the Accident Insurance Act 1998. 
In the submissions of the applicant in support of this application, an additional issue is raised: “whether s 116(2) of the Act requires a written notice of proposed suspension to be issued before the suspension of any entitlement is effected?” 
On 17 March 2000 the appellant suffered personal injury when she fell down some stairs in the course of her employment. Her claim for cover was accepted under the Act by the insurer and she received statutory entitlements including treatment and weekly compensation. The injuries sustained by the appellant included a fractured right proximal fibula and an undisplaced fracture of her right distal tibia. 
On 26 April 2001 the respondent issued a decision (based on certain medical reports) whereunder it purported to cancel cover. Following receipt of that decision the appellant lodged an application for review. The respondent then identified that its decision of 26 April 2001 was not the correct decision in the circumstances. Accordingly, by decision dated 12 July 2001, it revoked that earlier decision and substituted a decision to suspend entitlements pursuant to s 116 of the Act. 
Significantly, the appellant has had a considerable number of claims accepted under the various Accident Compensation Acts. Indeed, she has sustained further injuries subsequent to the March 2000 injury. All other injuries are the responsibility of the Accident Compensation Corporation. 
In his decision, Judge Beattie found that there was no evidence that the three percent impairment resulting from the March 2000 injury (in respect of which the respondent was responsible) in any way gave rise to any entitlement, the right to which would require the need to provide evidence of the specific criteria for any entitlement. He held that the evidence from the various specialists was overwhelmingly against the proposition that the appellant is still suffering ongoing effects from the accident of March 2000. Rather, the appellant had an unfortunate history of injuries and the condition with which she presents was one which presented well before the March 2000 injury and which was ongoing and seemed to have its genesis in severe injuries she suffered in a motor accident in 1978. 
A Question of Law 
The grant of leave to appeal to the High Court requires that the appellant show a tenable case that the decision of the District Court is wrong in law. 
The Courts have emphasised that for leave to be granted: 
The issue must arise squarely from “the decision” challenged: eg Jackson v ACC unreported, HC Auckland, Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC unreported, Fisher J, HC Auckland, 19 December 2001. Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002. 
The contended point of law must be “capable of bona fide and serious argument” to qualify for the grant of leave: eg Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001; 
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: eg Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA); 
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339, 354. 
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 [1995] 3 All ER 48, 57. 
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 & Bairstow [1995] 3 All ER 48, 57
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: eg Jackson and Kenyon above. 
Recently the Supreme Court, when quashing a decision of the Court of Appeal that it had jurisdiction to entertain a matter as an appeal on law, stated in Bryson v Three Foot Six Limited [2005] NZSC 34
… The task which the Lower Court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law …  
An appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly unsupportable. 
… Whether or not Judges in an appellate Court might, if sitting in the Employment Court, have reached a different conclusion, as the majority in the Court of Appeal certainly would have done, it cannot be said that Judge Shaw has made a decision which is inconsistent with the evidence or contradictory of it or one which can properly be described as ‘insupportable’. ”
Section 116(2) 
The first issue raised in the submissions (but not the notice of application for leave to appeal) is “whether s 116(2) of the Act requires a written notice of proposed suspension to be issued before the suspension of any entitlement is effected”. If this is an issue to be determined by the High Court then it should have been included in the notice of application for leave to appeal. I accept, however, that the issue was raised by the appellant in submissions made to Judge Beattie in the original appeal and that it was not specifically referred to in his judgment. 
This is not surprising as the section speaks for itself. Section 116(2) states quite specifically that written notice of the proposed suspension of an entitlement must precede the actual suspension. 
The respondent has never disputed this. No question of law concerning the interpretation of s 116(2) arises. 
The real issue pertaining to s 116(2) is whether s 116(2) was complied with. The appellant has alleged a failure in this regard. The respondent has referred to a letter dated 26 April 2001 which it claims satisfied the requirements posed in terms of s 116(2). The appellant has been given the opportunity to respond to the respondent's factual allegation but has not done so. Presumably, therefore, the appellant accepts that the respondent did comply with s 116(2). In any event, whether or not the respondent complied with s 116(2) is not a question of law: it is a matter of fact. 
Can an Insurer make a Decision to Suspend Entitlements without making a determination of incapacity? 
This issue was raised by the appellant in the notice of application for leave to appeal. It is possible that it is the same issue as that mentioned in the original notice of appeal under ground 2: “the information in the possession of the insurer upon which the decision of 12.7.02 was made was flawed and incomplete”. That statement is extremely vague. If it was intended to mean that the respondent should have made a determination of incapacity under s 85 of the Act before making a decision to suspend entitlements, then I accept that Judge Beattie did not specifically deal with the issue in his judgment. 
However, the second ground contained in the notice of appeal is framed so vaguely that it may not have meant that the appellant was claiming that there needed to be a determination of incapacity under s 85 of the Act before any decision to suspend entitlements was made. 
I agree with counsel for the respondent that it is difficult for the appellant to now argue that the issue was raised in the notice of appeal dated 12 January 2004. What is clear is that the appellant did not address it either in its written submissions in support of the appeal dated 17 March 2004 nor during the hearing itself. 
As this ground of appeal was not raised during the appeal, it cannot now be advanced as a ground for seeking leave to appeal to the High Court. Any appeal to the High Court can only raise issues which were determined during the original appeal. If the issue was not raised during the hearing of the original appeal, then it cannot be raised subsequently as a point on appeal before the High Court. In those circumstances, leave to appeal to the High Court on this ground should also be declined. 
As I noted in para 9(i) the issue must arise directly from “the decision” challenged. This issue does not. 
For the reasons set out above, the application for leave to appeal to the High Court is declined. 

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