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Accident Compensation Cases

Lister v Accident Compensation Corporation (DC, 13/12/10)

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 a decision of His Honour Judge J Cadenhead delivered on 20 January 2010 under decision number 3/2010. 
[2]
The issue in the appeal was the respondent's decision of 2 June 2007, whereby it determined that the applicant was not entitled to weekly compensation by reason of the fact that the applicant was not an earner and further, there was no evidence of incapacity from her covered injuries arising from a motor accident in October 1985. 
[3]
The respondent's decision had been upheld at review. 
[4]
At the hearing of the appeal the applicant introduced evidence of injury to her spine, hand and wrist, which she contended were her ongoing cause of incapacity. 
[5]
The evidence before the Court was that the applicant had cover for injuries suffered in a motor cycle accident in October 1985 when she suffered a fracture of the left tibia and laceration of her left knee. Following her discharge from hospital the applicant returned to her pre-injury employment and it is the case that there are no ongoing incapacitating features pertaining to those injuries. 
[6]
Judge Cadenhead also noted that at the time when the applicant made her application for weekly compensation she was in receipt of a sickness benefit and had been so for some time. 
[7]
The relevant paragraphs in His Honour's decision pertaining to the facts relevant to the issue were as follows: 
“The medical and other evidence on file establishes that the Appellant does not have cover for her spinal/hand/wrist conditions. She cannot therefore claim entitlements arising from those. 
Secondly, the Appellant would need to establish that by reason of injuries having cover, she was unable to engage in her pre-accident employment. The evidence is very clear that the Appellant was not only able to engage in her pre-accident employment, but in fact did so. That employment terminated by reason of redundancy, and not by reason of injury. 
The Appellant has not established, and cannot establish that she was incapacitated in her employment at any stage by reason of injuries having cover. 
I have carefully read and considered all the medical evidence, including the appellant's submissions before me at the appeal. However, I am of the view that the reviewer was correct in his assessment of these materials. On the facts in front of me there is nothing that would entitle the appellant to a decision in this appeal. The lack of medical support is a problem that she cannot overcome. ”
[8]
In her submissions in support of her application for leave the applicant is in effect reasserting the submissions she made to the District Court, namely that she suffered further injuries in that October 1985 accident, being injuries to her spine, left hand and wrist, and where she states in effect that the various health professionals who have provided medical evidence have been conspiring against her. Indeed in her submissions in support of her application for leave, she has not got a kind word to say about any of the medical specialists who have treated and dealt with her, and this includes her GP. The applicant's submissions can be summed up in the final paragraph of her submissions to this Court wherein she stated as follows: 
“Therefore I appeal against the decision of Judge J Cadenhead on the grounds that I would have had cover for spinal (including neck) left hand/left wrist injuries had medical staff not been engaged in criminal practice and actively seeking to pervert the course of justice. ”
[9]
For leave to be granted to appeal to the High Court an applicant must establish that there is an important question of law in issue which ought to be considered by the High Court. It has been stated that it must be a point of law capable of bona fide and serious argument. It is also the case that care must be taken to avoid allowing issues of fact to be dressed up as questions of law. 
[10]
In this present case, there was no question of law in issue on which Judge Cadenhead was called upon to make a finding. The statutory requirements for an entitlement to weekly compensation are quite clear, and His Honour's decision was entirely on the facts as to whether the applicant's circumstances on those facts gave rise to an entitlement under the Act. Indeed, the final sentence of his decision identifies that being the case when he stated: 
“On the facts in front of me there is nothing that would entitle the applicant to a decision on this appeal. The lack of medical support is a problem that she cannot overcome. ”
[11]
In those circumstances there are no grounds for the granting of leave to appeal. The Act does not allow for a general right of appeal simply because an applicant may be dissatisfied with the decision sought to be appealed. 
[12]
Accordingly I find that there is no question of law in issue which ought to be referred on to the High Court and therefore leave to appeal to the High Court is declined. 

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