Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Johnston v Accident Compensation Corporation (DC, 16/02/10)

Judgment Text

DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge M J Beattie
[1]
The applicant has made application for leave to appeal to the High Court from the decision of His Honour Judge P F Barber given on 30 March 2009 under Decision No.46/09. 
[2]
The decision of His Honour confirmed the correctness of two decisions of the Corporation, the first decision being to decline to fund surgery for the applicant and the second decision suspending entitlements. Both decisions were made on the basis that the applicant's continuing medical condition which required the surgery and which was said to be incapacitating, was caused by degenerative changes in the applicant's lumbar spine and were not caused by any injury suffered by the applicant in an accident on 12 March 2007. 
[3]
In this appeal the only specialist medical evidence came from Mr M Fossbender, Orthopaedic Surgeon, who was the specialist who made application to the Corporation for the funding of the decompression surgery to the left side of L4/5 and L5/S1 where it had been diagnosed that the applicant was suffering from lateral stenosis. 
[4]
In his decision Judge Barber fully considered the various reports of Mr Fossbender relating to the appellant's condition and how it came about and in particular at para 29 of his Judgment he identified that it was Mr Fossbender's view that although the accident or impact injuries had healed in themselves, the accident also destabilised pre-existing degeneration which had not settled down. 
[5]
On that basis, His Honour considered that the case fell squarely within the parameters of McDonald in the High Court decision of Justice Panckhurst where that Judge confirmed that it can only be injury caused by the accident which can be covered and not that caused by degeneration. His Honour also considered the decision of Justice Miller in Cochrane, which was to similar effect. 
[6]
Applying the principles of Cochrane and McDonald, and indeed other decisions of the District Court, His Honour determined that there was no causal nexus between the medical condition which was sought to be treated by surgery, and which was the appellant's ongoing incapacitating condition, and the injury suffered by him in the accident. He found that the ongoing causes were indeed the now symptomatic pre-existing degeneration in his lumbar spine. 
[7]
With that as the outline of the decision under consideration, Mr Beck, Counsel for the Applicant, submitted that the Learned District Court Judge erred in law in the following respects: 
(i)
by applying an incorrect test to determine causation; 
(ii)
by failing to take into account all the relevant evidence relating to the cause of the appellant's ongoing pain; 
(iii)
by misinterpreting the evidence of Mr Fossbender and therefore reaching conclusions that were not supported by the evidence. 
[8]
In support of the first claimed error, Counsel submitted that the Judge had wrongly considered the “but for” test as not applying in respect of Accident Compensation claims. Counsel submitted that in the light of the Court of Appeal's decision in Ambros, that line of authority cannot stand. 
[9]
I take it from Counsel's submission that it is contended that because the medical evidence establishes that the impact of the accident caused the previously asymptomatic lateral stenosis to become symptomatic and now requiring surgery, that was sufficient to establish a causal nexus. That is the “but for” test. 
[10]
As His Honour Judge Barber noted in his decision a significant number of decisions both of the District Court and the High Court have found that if the ongoing problem is that of pre-existing degenerative conditions now rendered symptomatic, then there can be no establishment of causation from the accident which would allow for entitlements. 
[11]
It seems that Mr Beck is now suggesting that that well-established principle is no longer applicable and he relies on the Court of Appeal decision of Ambros. He suggests that the Court of Appeal has held that the common law “but for” test does apply in relation to Accident Compensation. 
[12]
Mr Evans, Counsel for the Respondent, submits that Ambros does not say anything of the sort. 
[13]
I have not been given the benefit of the particular passage of Ambros to which Mr Beck may have been referring, but my own assessment of Ambros is that it does not assert that the “but for” test commented on by previous High Court decisions should no longer apply when considering issues of causation. 
[14]
The second error alleged was that Judge Barber failed to take into account all relevant evidence relating to the cause of the applicant's ongoing pain. That submission, I find, has no basis in fact. His Honour fully took into account all the relevant evidence and this is clearly demonstrated in his decision, and I find that the submission made by Mr Beck is simply an attempt to dress up findings of fact as a ruling of law. 
[15]
I find that a similar comment can be made in relation to the third error suggested, namely that the Learned Judge misinterpreted the evidence of Mr Fossbender, and therefore reached conclusions not supported by the evidence. If there was no evidence to support the Learned Judge's findings, then clearly that would amount to an error of law. However, in the decision His Honour has specifically adopted the evidence of Mr Fossbender who stated that there was no recognisable injury or damage that would have been perpetrated by the impact and that the applicant has destabilised his back from the impact which has caused the pressure on his nerve roots to become symptomatic. 
[16]
Clearly His Honour has applied that evidence given by Mr Fossbender to the applicable legal principles of causation. It would only be if the “but for” test were to somehow now be different from that which it has hitherto been found to be, would Counsel's submission have any basis. 
[17]
Mr Evans, Counsel for the Respondent, submitted that Judge Barber has not made any error of law and has applied the right test for causation and that the Judge has correctly dealt with matters of fact and made findings which the evidence allowed him to make. 
[18]
I must note that Counsel for the Applicant seems to have made a serious challenge to a long-held fundamental principle of law in the Accident Compensation field relating to causation and the rendering symptomatic of previously asymptomatic degenerative medical conditions. 
[19]
The decisions of the High Court in Cochrane and McDonald have, I find, been put into issue and although I find that the basis for them being put into issue is highly questionable, nevertheless I accept that a significant question of law does arise. In this particular jurisdiction issues relating to ongoing medical problems associated with pre-existing degenerative conditions arise in a significant number of factual scenarios in respect of which appeals are brought and heard. 
[20]
In the circumstances, I consider that leave to appeal should be granted to the applicant, but that the appeal should be confined to the question of law relating to the question of causation and specifically the “but for” test which has hitherto been considered not to be a test which can establish causation. 
[21]
Accordingly, leave to appeal to the High Court is hereby granted. 

From Accident Compensation Cases

Table of Contents