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Accident Compensation Cases

Langdon v Accident Compensation Corporation (DC, 26/03/08)

Judgment Text

DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge P F Barber
The Decision Sought to be Appealed 
[1]
The appellant seeks leave to appeal from a 9 January 2007 judgment of Judge M J Beattie (Decision No. 6/2007) in which His Honour commences as follows: 
“[1]
This is a rather curious appeal in that the appellant is not seeking to contest the substantive decision made at review, but rather is seeking to ‘put the record straight’ about the reason for his non-attendance at his Independence Allowance Assessment. 
[2]
It seems to be the case that the appellant considers that the Reviewer was derelict in her duty to adopt an investigative approach in the conduct of the review and further, that she made a credibility finding against the appellant to which he takes exception. 
[3]
The substantive decision made by the respondent which brought about the application for review was the respondent's decision of 30 June 2005 declining the appellant's application for an independence allowance on the basis that it had insufficient information upon which to make a decision regarding same. The reason for the respondent's decision in that vein was that the appellant had refused, and refused on more than one occasion, to attend on Dr Ross McCormick for the purpose of having his personal injuries assessed as is required before an independence allowance can be granted. 
[4]
In his application for review of that decision the appellant sought a direction that all his covered injuries be included in an assessment, including a claimed mental injury. 
 
[14]
The appellant's contention that the Reviewer ought to have made further enquiries to ascertain why the appellant did not communicate with the Reviewer at the appointed hour on the appointed day fixed for the review hearing by teleconference, is absurd. The Reviewer did attempt to contact the appellant at the time and I find that there is no duty on the Reviewer to continue attempting to contact the appellant for several days thereafter, as was contended, before the Reviewer sits down to consider a decision, with the appellant in absentia. 
[15]
The Reviewer, I find, has fulfilled her obligation under section 145(5) of the Act and there is nothing which remains of substance which this Court can address on appeal, save for it to confirm the correctness of the Review Decision appealed from. 
[16]
For the foregoing reasons this appeal is dismissed. ”
[2]
The substantive issue before the District Court was the respondent's “decision of 30 June 2005 declining the appellant's application for an independence allowance on the basis that it had insufficient information upon which to make a decision” (Refer para [3] above). The respondent had issued the decision as the appellant had failed to attend appointments with an Independence Allowance assessor (Dr R McCormick) to have his condition assessed. The issues put to the Court on behalf of the appellant, by his counsel, were: 
The appellant wished to “put the record straight” about the reason for non attendance; 
The appellant took issue with certain aspects of the reviewer's conduct of the review and the review decision. 
[3]
The District Court confirmed at paragraph [8] that the appellant's application for an independence allowance could not be considered until he was assessed and proceeded to state: 
“ … In that regard, the Reviewer's substantive decision was correct, indeed the only decision that could be made, and as I apprehend, Mr Miller [then counsel for the appellant] was not seeking to argue otherwise. ”
[4]
The Court found no merit with the appellant's issues and dismissed the appeal. 
Discussion 
[5]
The appellant seeks leave to appeal from Judge Beattie's decision. The respondent opposes the application for leave on the basis that the appellant has failed to identify an erroneous question of law. 
[6]
Pursuant to s 162(1) of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”), the appellant is only entitled to leave to appeal to the High Court on questions of law. The questions must be both serious and arguable. 
[7]
It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law and a Judge's treatment of facts can amount of an error of law. 
[8]
Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. 
[9]
The appellant's written submissions, in support of the application for leave, are difficult to follow in the context of the present application for leave. They do not pertain to the issues argued at the appeal hearing regarding the alleged irregularities at review. 
[10]
In the relevant review decision of 11 October 2005, the Reviewer had noted that the appellant has cover for a large number of injuries incurred from 1977 to 2005 and that on 6 February 2004 he made a number of applications for independence allowance lump sums. Altogether, 24 injuries were certified as being stable and as having resulted in impairment to the appellant although it transpires that seven of these were not covered. 
[11]
The main issue was whether ACC correctly declined the appellant's application for the independence allowance for Post Traumatic Stress Disorder in its decision of 9 June 2005. The other issue was whether ACC correctly declined the appellant's application for the independence allowance on the basis that it had insufficient information. That decision was made on 30 June 2005. The Reviewer quashed the decision of 9 June 2005 and replaced it with a decision that the appellant is entitled to be assessed for the independence allowance for his PTSD arising from an accident of 19 November 1991. 
[12]
As I understand it I am now only required to address the second issue in terms of the present application for leave to appeal. 
[13]
The appellant appears to accept that he did not attend the appointments with Dr McCormick but in the body of his submissions provides reasons regarding the non attendance. The appellant suggests that any assessment would not have been complete and reference is made in this regard by the appellant to the PTSD (Post Traumatic Stress Disorder) condition. 
[14]
Until the appellant is assessed, his application for an independence allowance cannot be considered. The appellant's counsel indicated to Judge Beattie that point was accepted. Accordingly, it was inevitable that the appeal would be dismissed. 
[15]
At paragraph [10], the Court noted evidence from the respondent that it was still taking steps to have the appellant assessed. 
[16]
There seems little purpose (or direction) with this application for leave. The appellant has not raised any question of law. The application for leave to appeal is hereby dismissed. 

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