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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 21/10/11)

Judgment Text

DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT 
Judge D A Ongley
[1]
This is an application for leave to appeal from a judgment of His Honour Judge M J Beattie delivered on 23 December 2008, Jones 301/08. There is some history to the application for leave but it is not necessary to refer to it. 
[2]
The difficulty for the appellant is that his purpose in seeking leave is to obtain relief or compensation that is not available. 
[3]
In his judgment, Judge Beattie first outlined that the appellant had received a sum by way of backdated weekly compensation, and that he did not dispute the amount, but felt that it did not adequately compensate him for losses that his business had suffered since the injury. 
[4]
The appellant's submissions for leave to appeal address the following matters: 
1.
The circumstances of his treatment injury, which occurred on 13 May 2005. 
2.
That he could not work because of his injury but his treating practitioner did not apply for ACC cover or weekly compensation for him. 
3.
That a second treatment issue on 18 April 2008 was not covered as an injury. 
4.
That ACC was not co-operative in processing his application for cover and entitlements. 
5.
That ACC has a conflict of interest. 
6.
That he should have received weekly compensation from 20 May 2005 but did not. 
7.
That he could have sold his business if he had been told of the severity of his injury and its consequences, but he continued to operate the business which ran down because of his incapacity caused by injury. 
[5]
It appears from the judgment that the backdated weekly compensation was taken from 26 May 2005, so the only issue about that is the delay in payment. On such an application, the Corporation is liable for weekly compensation properly calculated, and interest only in the circumstances described in the Accident Compensation Act 2001. The application does not raise any question of law about payment of interest. 
[6]
The question of an injury on 18 April 2008 is not part of this appeal. It would require a separate application for cover. Broad questions of performance by ACC do not raise a question of law for consideration by the High Court. 
[7]
The only question that fits into a compensation context is the downgrading of the appellant's business because of his incapacity. Losses in income from personal exertion are taken into account in terms of abatement income, so that a complete loss of personal exertion income would result in full payment of assessed weekly compensation. That weekly compensation is of course 80% of pre-incapacity earnings. 
[8]
The other losses appear to be in the nature of capital losses or losses of dividend income that the business might otherwise have produced independently of the appellant's personal exertion in operating the business. There is an accompanying loss of the opportunity of selling the business before it deteriorated. Unfortunately there is no category of ACC entitlement that covers such losses. 
[9]
The only question of law raised by the appeal is the question of compensation for business losses apart from the entitlement of weekly compensation. Weekly compensation itself is calculated according to a strict statutory formula. The other business losses are not covered within the Accident Compensation scheme. It is not a question of law that could seriously be argued in the High Court. The scope of entitlements is very clear and the Corporation is not liable for any other payments. 
[10]
It is clear, as the Judge recognised, that the appellant suffered serious and ongoing pain from a treatment injury and suffered commercial and other losses consequent on the injury. 
[11]
It is equally clear that there is no seriously arguable question of law arising from the appeal judgment. Therefore the application for leave is refused. 

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