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Accident Compensation Cases

Penman v Accident Compensation Corporation (DC, 06/12/11)

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 against a judgment delivered by His Honour Judge M J Beattie on 30 October 2009; Penman v ACC 186/2009
[2]
The question concerned the Corporation's refusal of cover for Post Traumatic Stress Disorder and the appeal was dismissed because the disorder did not result from physical injury to the appellant, but from a horrifying accident that the appellant saw. 
[3]
The accident happened when Mr Penman was working in a plastics recycling business in July 1991. He saw a worker dragged into a crushing machine and crushed to death. Mr Penman was not physically injured in the catastrophic event, but it had a traumatic psychological effect upon him and he was later diagnosed with PTSD. His claim for cover was not made until 2008. The Corporation's reason for declining cover was that the appellant's injury had not arisen from physical injury and cover was available under the Act. 
[4]
In his judgment, Judge Beattie recited s 360 of the Accident Compensation Act 2001 which requires any claim for cover under earlier Acts to be eligible for cover under both the 2001 Act and also the Act that was in force at the time of the injury. Under the 2001 Act, personal injury includes “mental injury suffered by a person because of physical injuries suffered by the person”. Otherwise, there is no cover for mental injury. If the appellant had suffered the mental injury during the currency of the 1982 Act he may have been eligible for cover, but that is not relevant to an application made for cover under the 2001 Act. The 1982 had been repealed, except to the extent that some of its provisions were preserved under the transitional provisions of the 2001 Act. 
[5]
The judgment spelled out the statutory provisions applying to the circumstances of the appellant's mental injury. There is no dispute about the circumstances of the injury and the decision involve a straighforward application of the law as it stood in 2008 and at the present time. 
[6]
An appeal to the High Court lies only in cases in which the District Court may have made an error of law. The question of law must be one that can be the subject of bona fide argument. 
[7]
The appellant's application for leave to appeal was a handwritten document that pointed to the unfairness that he perceived in his situation of being unable to obtain cover that would have been available to him before the 1982 Act was repealed. The application does not outline any question of law apart from that. 
[8]
There is nothing in the written application for leave, nor in the overall circumstances of the case, that could raise a fairly arguable question of law. The 2001 is clear in its terms and has been consistently applied in the manner adopted by the Judge in the appellant's case. 
[9]
Therefore leave to appeal is refused. 

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