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Accident Compensation Cases

Thomas v Accident Compensation Corporation (DC, 11/04/11)

Judgment Text

Judge D A Ongley
This is an application for leave to appeal to the High Court on a point of law arising from a judgment of His Honour Judge Barber, decision 61/10 delivered on 21 April 2010. In that decision, the Court found that at 18 August 1997, when the Corporation suspended his entitlements, the appellant was not incapacitated from performing the type of work he undertook prior to his covered injury, or was not unable by reason of personal injury to engage in his pre-accident employment. 
Mr Thomas divided his grounds of appeal under two headings: Did the ACC have any valid information that the claimant was working? Does s 73 describe “work” as the basis in law entitling ACC to cancel the claim? 
Mr Thomas says that the decision failed to address either of these points on appeal. 
Mr Thomas says that “the decision has been reconfigured then weighed against the respondent submissions, to the exclusion of the claimant's exhibits and submissions rendering a proper decision an impossibility”. This is essentially a submission that the Court did not consider all the evidence and failed to properly address questions of fact. 
At the same time as this application, Mr Thomas applied for recall of the judgment. His Honour Judge Barber declined that application. In doing so, he stated: 
The evidence produced in this case has been considerable. Listing each and every document filed by both parties in the judgment is unnecessary and impractical. Simply because a document has not been mentioned in the judgment does not indicate that evidence has not been considered. 
The appellant puts it that my substantive decision is deficient in questions of fact and law and that I have failed to consider many of his submissions and exhibits. Essentially, he seems to be putting it that I did not properly examine the evidence and so came to wrong conclusions of fact. He seems to be also criticising the Registry staff whom I know to have been immensely cooperative with him at all stages and far beyond the call of duty. ”
Mr Thomas had presented his appeal by exhaustively referring to documents, events and assertions. Each item could then be accompanied by some kind of submission. While such an approach may appear superficially impressive, it fails to present a coherent argument may well oblige the Court to “reconfigure” the appellant's presentation in order to make some sense of it. The appeal case suffered from those problems. 
I regret that, after receiving this application for leave to appeal, I have not been able to give it the attention it needed, because of the voluminous material accompanying it and the unusual pressure of other cases. 
The judgment under consideration began by identifying the issue as follows: 
Was the appellant incapacitated, as at 18 August 1997, by an injury to his wrist while yachting in December 1989; or, was he substantially able to carry out his pre-accident employment as a project manager? ”
After exhaustive examination of the evidence Judge Barber stated: 
The appellant's case is based on two broad propositions: 
The appellant, by his own evidence, allegedly had no day-to-day involvement in any of the businesses identified in this case (or identified in the criminal case) and that his role was simply financial and at best, peripheral but irrelevant; and 
The medical evidence is allegedly consistent and supportive of the fact of the appellant's ongoing and continued incapacity. The appellant relies on certifications of the same from his General Practitioner, Dr Wilcox, as well as various specialist medical reports prepared from 1990 onwards. 
The main contentions which arise from the appellant's second proposition above, as pursued by the appellant, are: 
The medical practitioners who have assessed and treated the appellant from 1990 to 1997 are of the view that the appellant is incapacitated and is unable to use his hand or wrist for light physical duty, including handwriting, typing or using the mouse for any length of time. …  
Since the appellant's surgery on 28 August 1992, undertaken by Mr Martin Rees, the appellant's right wrist has been a lot worse …  
The appellant had a stroke in August 1993 and he has had serious cognitive problems since …  ”
The Judge then examined the medical evidence, while contrasting it with other evidence. He went on to say: 
I agree with Mr Tui that the importance of the specialist medical evidence lies in the fact that none of the specialists suggest that the appellant's wrist injury precludes the appellant from undertaking normal activity with the right hand. 
The reports from 1990 to 1997 are referred to below in some detail to show that the appellant's reliance on the reports is flawed. The medical opinions that the appellant relies on are in fact opinions that have simply relied on the appellant's inaccurate self-reporting. ”
Oral evidence was heard at the appeal hearing. The applicant called witnesses. He gave evidence and cross-examined the respondent's witnesses. In support of the leave application, Mr Thomas has submitted that the Court reached unjustified conclusions about his credibility. 
Conflicts in evidence required the Court to address questions of credibility. In his judgment, Judge Barber explained his reasoning as follows: 
In the hearing before me, the appellant has provided evidence and been cross-examined all at very great length. He has called Nicole Rosie and Stephen Davey as witnesses in support of his appeal. The Corporation made the following witnesses available, at the request of the appellant, for cross-examination by the appellant, namely, Robert Cheetham (private investigator; Maree Hill (complaints investigator at the time of the 1997/98 review); Janice Lorier (the appellant's previous case manager); Martin Williscroft (ACC fraud unit). Also, the Corporation has called the following witnesses in support of its case: Russell Cassey (Trigon); David Martin (Trigon); Benjamin Masoe (Orac Migration); and Bruce Bryant (chartered accountant). 
From nearly 29 years experience as a District Court Judge in many jurisdictions, I am conscious that it is often difficult to know whether to believe a witness or to what extent to believe a witness. It is possible for a witness to become hazy and confused over time. Broadly, in assessing credibility, it is my practice to look at a witness' evidence not only in its context, but also in the context of the total evidential fabric of the case. To some degree, I take into account a witness' manner, demeanour, and general body language when giving evidence and being cross-examined; but I am conscious of cultural factors and that demeanour and body language can be misleading e.g. a witness may be affected by nervousness. There is no such factor in this case where the appellant is very assertive, confident, fluent, and talented. A witness' evidence is probably best tested against the known facts and for its inherent probability and consistency, and evidence needs to be related to sensible inferences. In terms of my approach and experience, I did not find the appellant a convincing witness. ”
And later in his judgment: 
I have allowed this appeal hearing to be unusually (perhaps unduly) lengthy in an effort to be absolutely fair to the appellant who is a man of extensive talent and industry and very persistent. His very detailed compilation of evidence, documents, and submissions show his intelligence and capabilities. However, he seems so obsessed with his perceived entitlements from ACC that, on that issue, he becomes irrational. As indicated above, I do not assess him as a credible witness but I am confident that all other witnesses were truthful and fair and as accurate as possible in their evidence. ”
Credibility findings were open to the Court hearing conflicting evidence and deciding questions of fact. No question of law can arise from those findings. 
Judge Barber's final conclusion was expressed as follows: 
The best evidence is that about the appellant's activities from 1990 to 1997. The witnesses provided first hand details of their observations of the appellant's activities in various businesses over those years. Witnesses worked for and with the appellant in the various businesses and had direct knowledge of the appellant's role and day-to-day activities in these businesses. 
When I stand back and absorb the detailed evidence adduced to me, I am in no doubt that, as at 18 August 1997, the appellant was not incapacitated from performing the type of work he undertook prior to 27 December 1989. He was not incapacitated, or unable, by reason of personal injury, to engage in his pre-accident employment. Also, as at 18 August 1997, the appellant was working full-time as a controlling executive as described above. On the balance of probabilities, the Corporation was entitled to be satisfied, from the information then available to it and in its possession, that the appellant was not entitled to continue receiving entitlements and that they should be suspended. ”
Mr Thomas submitted that the only information submitted to the Court was that the appellant was working while incapacitated yet the court made a decision that the appellant was no longer incapacitated to return to his pre-injury occupation. He submitted that “the effect of paragraph 473 that the court impressions is best the evidence and superior to medical certificates evidence is wrong in law”. This is a submission about the Court's findings of fact and was developed at length in written submissions on this application. It does not raise a question of law for appeal to the High Court. A particular example of this kind of submission is the following: 
“The medical evidence is that the claimant has a limited capacity of perhaps two hours per day, fragmented throughout the day, to the extent that even if informants had witnessed any activities 2 hours per day that could be interpreted to be that of the preinjury activity, which they did not, there is no evidence that the claimant can sustain such activities in accordance with medical safety in the workplace requirements, let alone the certain destruction of the residual tissue structure in the claimant which would have also certainly ruined any possibility of the reconstructive surgery to allow sustainable work activity, as awarded by the 1992 review hearing decisions. It is submitted that the court is wrong in law and does not have the technical wherewithal nor legal authority to challenge medical certificates without superior medical information and that members of the public making assumptions does not meet legislated criteria of s 37 going toward s 73 information. ”
An assertion that the Court has assumed medical expertise does not raise a point of law. The process of the Court is to examine medical opinions and certificates and make a judgment of weight and reliability in order to decide which evidence should be preferred. The Court is also able to consider evidence of activities in which the applicant has engaged, and to take that into account along with medical evidence, in order to decide whether the applicant had the capacity to work. 
Overall, the applicant's arguments, directed at supposed questions of law, are an attempt to relitigate fact questions decided in the appeal. The applicant's concern with a judgment that went against him can be readily understood, but the Court does not have statutory authority to consider all the fact arguments again. 
His Honour Judge Cadenhead in O'Neill 250/08 set out the principles affecting grant of leave, as follows: 
The grant of leave requires that the intended appellant show a tenable case that the decision of the District Court is wrong in law. 
The Courts have emphasised that for leave to be granted: 
The issue must arise squarely from ‘the decision’ challenged: e.g., Jackson v ACC unreported, HC Auckland, Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC [2002] NZAR 385Has Cases Citing which are not known to be negative[Green] . Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002
The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave: e.g., Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: e.g., Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA)Has Litigation History which is not known to be negative[Blue] 
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339, 354.Has Cases Citing which are not known to be negative[Green]  
A decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of, the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57. 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA)Has Cases Citing which are not known to be negative[Green] ; Edwards & Bairstow [1995] 3 All ER 48, 57. 
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: e.g., Jackson and Kenyon above. 
Recently the Supreme Court, when quashing a decision of the Court of Appeal that it had jurisdiction to entertain a matter as an appeal on law, stated in Bryson v Three Foot Six Limited [2005] NZSC 34Has Litigation History which is not known to be negative[Blue] 
… The task which the Lower Court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law …  
An appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly unsupportable. 
… Whether or not Judges in an appellate Court might, if sitting in the Employment Court, have reached a different conclusion, as the majority in the Court of Appeal certainly would have done, it cannot be said that Judge Shaw has made a decision which is inconsistent with the evidence or contradictory of it or one which can properly be described as ‘insupportable’. ”
I have read carefully Judge Barber's long judgment and can find no conclusions that are inconsistent with the evidence. The applicant would have to point to some other evidence that the Judge did not take into account and which was of such significance that it should have been expressly considered and would have raised the real possibility of a different conclusion on a relevant fact issue. It is certainly not enough to select parts of the evidence that could lead to different findings if accepted in preference to other parts of the evidence. In the face of a carefully reasoned judgment it is very difficult for an applicant for leave to appeal to identify any treatment of facts that can amount to an error of law. 
Question of law 
A specific question of law raised on this application is, in the applicant's words, whether s 73 describes “work” as the basis in law entitling ACC to cancel the claim. 
In the relevant period Mr Thomas was found to be working in a variety of roles. On this leave application he submitted that a finding that he had worked failed to meet the test for capacity, that is to say the ability to carry on his pre-injury employment. He agrees that he was able to work, but only to a limited extent and by exhausting his limited capacity over short periods of part time activity. 
In his judgment, Judge Barber followed a line of authority that a claimant is not incapacitated if he or she is substantially able to carry out pre-accident employment: see Irving v ACC (High Court, Whangarei, AP 53/01, April 2003) Laurenson J and the cases of Richardson 125/97, Broome 117/97 and Lamb 74/98 to which Judge Barber referred. 
No error of law has been identified in the Judge's statement of the matters about which the Corporation had to be satisfied in making its decision. The Judge then went on to say: 
The question in this appeal is whether, as at 18 August 1997, the appellant was incapacitated as a result of personal injury suffered on 27 December 1989; i.e. was he unable to carry out his pre-accident employment as a Project Manager. 
The question of the appellant's ability to undertake his pre-accident employment is a question of fact and credibility is a vital issue. 
The starting point in assessing the appellant's incapacity is to identify his pre-accident employment. It is then necessary to consider, as a matter of fact, whether the appellant was substantially capable of performing this employment at the material time (i.e. 18 August 1997). To this end, the Corporation focused on the work activities the appellant was able to undertake while he was in receipt of weekly compensation (and while he was certified unfit to work in respect of his right wrist). ”
It is unnecessary to continue with Judge Barber's analysis of the structure of the evidence and the evidence from which he drew conclusions in reaching findings on the balance of probabilities. Suffice to say that the judgment discloses nothing that could support a bona fide and serious argument of error on a matter of law. 
For the foregoing reasons, I find that the applicant has failed to identify any matter on which the decision may be wrong in law. Leave to appeal is therefore refused. 
The respondent filed an application for costs in June 2010. I understand that this costs application concerned the substantive appeal. In case it was intended to relate to the leave application the matter of costs is reserved. It will be brought to the attention of the Registrar as a matter that Judge Barber may have to consider. 

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