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Accident Compensation Cases

Gallagher v Accident Compensation Corporation (DC, 03/03/10)

Judgment Text

Judge P F Barber
This ruling is about the appellant's concern that a full transcript of the review hearing is unavailable, although a substantial, but incomplete, transcript exists. 
In a comprehensive decision of 11 May 2009, following a hearing on 5 May 2009, Reviewer Ms Kay Stringleman at Christchurch confirmed ACC's 30 December 2008 decision declining the appellant cover for a treatment injury. She dismissed the review application and concluded her decision as follows: 
“My conclusion is that the medical evidence provided by Mr Finnis, the findings of the District Court, and the external clinical advice provided by Mr Macdonald, show that Ms Gallagher's C7 radicular pain in her left hand and arm is caused by a degenerative condition and has not been caused by personal injury caused by accident, or by medical treatment. 
For this reason I confirm ACC's decision that Ms Gallagher's claim for cover for a treatment injury in respect of the symptoms in her left hand and arm does not meet the criteria for cover as a treatment injury. ”
By notice of appeal received on 17 June 2009 Ms Gallagher appealed that review decision. Since then there have been a number of communications between the parties and the registry and an issue referred to me for ruling is the appellant's concern that the transcript of the review hearing is incomplete. Apparently the tape of the hearing was stopped when the representative from ACC was disconnected from participating in the review hearing by telephone. Apparently also, the tape was not restarted when the hearing recommenced; so that there is not a full record of the review hearing. 
I have observed in other cases over the years that I disapprove of so called telephone participation at review hearings. In fact, I find it rather disturbing in that there is the likelihood of the review hearing failing to comply with natural justice. I do not know why this practice persists. 
The recording failure has been raised by the appellant as a “jurisdictional issue”, but I am not quite sure what effect the failure is put to have had or what remedy the appellant seeks. I infer that the appellant seeks a rehearing at review level and the quashing of the existing review decision of 5 May 2009. Perhaps, the concern of the appellant is that the appeal hearing before me will have the difficulty of the lack of a full transcript of the review hearing. 
Helpfully, Ms Ahern has put the issue as what impact, if any, the incomplete tape recording of the review hearing might have on the appeal lodged to this Court. 
I agree with Ms Ahern that while it is most unfortunate that the transcript is incomplete and that such aspect cannot be overcome to date, the validity of the review decision is not affected and there is no impediment to the appeal to this Court. 
I have often noted that an appeal to this Court from a Reviewer is an appeal by way of rehearing. This means that there is an opportunity before this Court for the adducing of evidence or further evidence and, of course, to re-present evidence to overcome any deficiency in the recording of the evidence given at review. 
Ms Ahern pointed out that the appellant has referred to the requirement in s 143 of the Act for the Reviewer to take reasonable steps to ensure that an accurate record of the evidence given at the hearing is taken and to keep such records for at least two years. There can be no doubt that the Reviewer took such reasonable steps in this case but there was a system failure; although it appears that most, if not all, of the appellant's has actually been recorded. 
Ms Ahern also helpfully stated: 
From time to time a full transcript cannot be provided because of operational error or technical malfunction. If this occurs with the result that evidence (as opposed to submissions) given at a review is not recorded, then this is usually addressed by the party whose evidence is not recorded filing a brief of that evidence in the Court. ”
That is also my experience and I quite frequently hear evidence when dealing with ACC appeals in this District Court. 
I also agree with Ms Ahern that if Mrs Gallagher considers that she had provided some evidence at review which was not recorded, she may seek leave of this Court to file a brief of such evidence. Ms Ahern advises that ACC would not oppose such an application. 
Clearly, the appellant is concerned that her evidence and/or evidence on her behalf, has not been properly adduced at review. Accordingly, I grant leave for her to file a brief or briefs of it for the purposes of an appeal hearing before this Court. At the appeal hearing she can take the oath or affirmation and confirm that evidence and add to it if she wishes and be available for cross examination (and re-examination, if appropriate). This Court will then have all the information provided to the Reviewer, and probably more, so that the appellant's appeal can be justly disposed of. I invite the appellant (through her representative) to proceed accordingly. 

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