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Accident Compensation Cases

Allen v Accident Compensation Corporation (DC, 11/11/08)

Judgment Text

DECISION OF JUDGE J CADENHEAD ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge J Cadenhead
[1]
This is an application for leave to appeal against a decision of His Honour Judge M J Beattie delivered on 10 March 2008. 
[2]
The issue that confronted His Honour arose from a decision of the respondent dated 13 February 2007, whereby it held that the appellant's claim for interest on the appellant's backdated weekly compensation pursuant to section 114 of the Act was limited to the period commencing 13 August 2006 and concluded on 10 October 2006. 
[3]
His Honour said that the appellant had two claims for sensitive claims, one from childhood and one from an incident as an adult. He said that this was a complicated appeal and as a result of this the appellant had made two separate and distinct claims for interest. 
[4]
The respondent has all the financial information regarding the appellant's pre-incapacity earnings, or indeed any post-incapacity earnings for the financial years ended 31 March 1996 and 31 March 1997, advised to it by a certificate dated 14 September 1998. The issue that arose in the appeal related to her incapacity and the particular events, for which cover was granted and which caused her incapacity. 
[5]
Counsel for the appellant had submitted that there were in effect two separate claims for interest arising. The first claim related the issue of rape occurring on 16 March 1997 and the second claim was based upon her cover for sexual abuse that she had suffered as a child. 
[6]
Judge Beattie dealt with both these two claims and found for the appellant on the first and the respondent on the second. 
The claims of the appellant 
[7]
The appellant has filed for leave to appeal and has raised 7 grounds of appeal. I do not think that I have any reason to entertain the decision concerning the first avenue of appeal that was decided in favour of the appellant. 
[8]
Claim 2 describes a claim being interest on the back payment of compensation from 16 March 1997 to 2 June 1997. This being the period for the general entitlement to disability payment arising not from the rape occurring on 16 March 1997 to 2 June 1997. As has been stated in the papers this amount is not great for the calculation of interest. 
[9]
One of the main contentions of the appellant was that the Court failed to take into account the facts relevant to the effect and scope of the 1999 review decision. I accept at once that the review decision was part of the background of fact that was before the Judge, however that was only one of the factors that he had to take into consideration in arriving at his decision. 
[10]
I might say that I had difficulty in determining precisely what the appellant was concerned with in her submissions concerning the legal issues that she desired to put before the High Court in this appeal. The reason for this difficulty was that it seemed to me that the issues that she was complaining of were part of the balancing of the factual background that the Judge detailed in arriving at his decisions. As I have indicated I am not going to analyse in detail the seven points that she makes in detail. 
The decision of Judge M J Beattie 
[11]
I set out paragraphs of His Honour's decision: 
“In terms of Claim 2, I find that for the appellant to be entitled to weekly compensation back to 16 March 1997, it was necessary for it to be established that the appellant's incapacity from that date was in fact a result and consequence of her earlier sexual abuse cover, as the rape cover could not be said to date from the date of the event as it was held that her first treatment for the mental injury from same was not until 2 June 1997. It is the case that by virtue of Section 36 of the Act, that was the deemed date of the suffering of the mental injury from that cause. 
I am satisfied that the respondent required further clarification of the cause of the appellant's incapacity as from 16 March 1997, and that this was reflected in the Consent Memorandum which the parties agreed to, and which resulted in the report from Dr Nicholson, and which, as interpreted by Dr Galloway, determined that incapacity arising from the sexual abuse, but precipitated by the rape, did commence on 16 March 1997. 
Nothing turns on the fact that the respondent delayed its decision after receiving Dr Nicholson's report until it had received confirmation from its Medical Advisor, Dr Galloway, as only a day or so elapsed between the receipt of Dr Nicholson's report and that of Dr Galloway. 
In terms of the statute pertaining to interest, the respondent was thereby obliged to make payment of backdated weekly compensation for the period from 16 March 1997 to 2 June 1997, on or before 13 August 2006, and at which time limit the respondent recognised it did not meet that time limit when it agreed to pay interest for the period 13 August 2006 to 10 October 2006, being the date when it actually made the back-payment. 
Accordingly then, I find and rule that the respondent has met its obligations to pay interest in respect of the appellant's Claim No.2. For the sake of completeness, I set out the final paragraph of Dr Nicholson's report of 7 July 2006, which encapsulates the providing of the information which I have found was necessary. Dr Nicholson stated as follows: 
‘So, can I finally say, that the rape in March 1997, totally changed the relatively even tenor of her life and mental health in very dramatic ways, and was much more than an exacerbation of her previous mental injury, which appeared to have been in abeyance for 10 years or more. ’
In summary then, the appellant is in some considerable measure successful in this appeal, in that I have found that there was a late payment of weekly compensation within the meaning of Section 114 of the Act, in relation to the backdated weekly compensation for the period 2 June 1997 to 5 March 1998 and that an interest liability has accrued for that sum for the period 10 April 2004 to 23 December 2005. 
The appellant being successful, I allow costs in the sum of $2,000, together with qualifying disbursements. ”
Legal principles concerning leave to appeal 
[12]
I set out the observations of Fisher J in Kenyon v ACC [2002] NZAR 385Has Cases Citing which are not known to be negative[Green] , 390: 
“[13]
Sections 89 and 90 of the 1992 Act gave a claimant the right to a review hearing in respect of any decision of the Corporation. From the decision of the Review Officer there was a right of appeal by way of rehearing, with respect to both facts and law, to the District Court, pursuant to ss 91 and 92. From the decision of the District Court there was a limited right of appeal to this Court pursuant to s 97(1) which provided: 
‘Where any party is dissatisfied with any decision of a District Court under this Act as being erroneous in point of law, that party may, with the leave of that District Court, appeal to the High Court: 
Provided that, if the District Court refuses to grant leave to appeal to the High Court, the High Court may grant special leave to appeal. ’”
[14]
It is agreed that pursuant to the transitional provisions in s 453 of the Accident Insurance Act 1998, those 1992 appeal provisions continue to govern the present case. 
[15]
In his helpful submissions Mr Corkhill summarised the effect of the authorities relating to special leave as follows: 
‘(a)
The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA)Has Cases Citing which are not known to be negative[Green] 
(b)
Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle, Manawatu Co-operative Dairy Co Ltd v Lawry, [1988] DCR 509Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43Has Cases Citing which are not known to be negative[Green] 
(c)
The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
(d)
It is for the Applicant to show that leave is required in the interests of justice: Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
(e)
As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chow Mein Fashions Ltd. ’
I am grateful for that summary, and agree with it. ”
[13]
Leave should not be given if the issue is not capable of bona fide and serious argument: Impact Manufacturing Ltd v ARCIC (High Court Wellington AP 266/00, 6/7/2001, Doogue J.) Again, the requirement of leave is to ensure that scarce judicial time is allocated sensibly: Tohu v ACC (High Court Auckland CIV 2003/404/469, 12/11/2003). Further the observations of Gendall J in Wardle v ACC (AP 134/02 Wellington High Court 27 February 2003) are relevant to the applications for leave here: 
“[5]
The principles to be applied on applications for granting leave to bring what is ultimately a third appeal are clearly stated in Waller v Hider [1998] 1 NZLR 412 (CA)Has Litigation History which is not known to be negative[Blue]  and reviewed in Snee v Snee [2000] NZFLR 120 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . They need no elaboration by me. For leave to be granted the matter must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal. In the end the guiding principle is the requirement of justice. …  
[8]
It is well known that if a point is academic and there does not exist between these parties a matter in actual controversy which the Court of Appeal ought to decide, then leave should not be granted. That is because no useful purpose would be served as between these parties: see, for example, Finnigan v N.Z.R.F.U. (No 3) [1985] 2 NZLR 190Has Litigation History which is not known to be negative[Blue] . In my view only the first question is a matter of law but the applicant does not raise a bona fide and serious argument so as to require a case to be stated for the opinion of the Court of Appeal on a question of law only given the consistent decisions of this Court. This is not the sort of case that should take up the time of the Court of Appeal. ”
[14]
I set these dicta out as they have proved a valuable guide in deciding the question of whether leave should be given in the present case. I have endeavoured to apply these principles to the issues that have confronted me. 
[15]
One of the issues in this appeal is the use of scarce judicial time and resources. 
Decision 
[16]
In my view, no questions of law have been identified that could properly be stated for the consideration of the High Court in respect to issue two. The actual amount of any interest calculation is small. In my view, the preponderance of evidence supports the finding of His Honour Judge Beattie. For the reasons that I have given I decline leave to appeal to the High Court. 
[17]
There is no order as to costs. 

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