Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Pearce v Accident Compensation Corporation (DC, 21/10/14)

Judgment Text

Decision of Judge J A Smith on Application for Leave to Appeal 
A.
Leave to appeal is granted on the following questions of law: 
1.
Is the Corporation required to take into account non-covered conditions that prevent a person from working? 
2.
Should the District Court have taken into account sections 20 and 26 of the Act when applying the wholly or substantially test? 
3.
In regard to the answer to question 2, on the medical evidence before the Court, does this result in Chronic Daily Headache (“CDH”) condition attracting cover? 
B.
Costs are reserved pending the eventual outcome of the outstanding appeal. 
REASONS FOR DECISION 
Judge JA Smith
Introduction 
[1]
An application for leave has been filed for the following questions: 
“1.
Is the Corporation required to take into account non-covered conditions that prevent a person from working? 
2.
Should the District Court have taken into account sections 20 and 26 of the Act when applying the wholly or substantially test? 
3.
In regard to the answer to question 2, on the medical evidence before the Court, does this result in CDH condition attracting cover? ”
[2]
Mr Schmidt filed submissions in support, with some 31 pages of submissions; those in reply for the Corporation, six; and further submissions of Mr Schmidt another seven. It is not for this Court on a leave application to reach any decision on the merits of those submissions. The point is whether the appeal is on a question of law, and whether it is advanced on a bona fide basis and raises an arguable issue. 
The law 
[3]
The law on the grant and withholding of leave to appeal in the ACC context was usefully compiled and restated by His Honour Judge Hole in Hutchen v ACC1
| X |Footnote: 1
[2005] NZACC 274
“Applications for leave to appeal 
4.
The grant of leave requires that the intended appellant show a tenable case that ‘the decision of the District Court as being wrong in law’
5.
Over the years, the Courts have given some guidance as to what constitutes a point of law: 
5.1
The issue must arise squarely from ‘the decision’ challenged: eg Jackson v ACC unreported, HC Auckland, Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC unreported, Fisher J, HC Auckland, 19 December 2001. 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
5.2
The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave: eg Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266-00, 6 July 2001
5.3
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: eg Northland Co-Operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 363, 363 (CA); and 
5.4
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]  
5.5
It is well settled that 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. 
5.6
Whether or not a statutory provision has been properly constructed 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. 
5.7
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: eg Jackson and Kenyon above. 
5.8
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] 
[21]
… The task which the Lower Court is engaged upon is the application of 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 …  
[25]
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. 
[40]
… 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’. ”
The questions 
Question 1 - Whether the corporation is required to take into account non-covered conditions that prevent a person from working. 
[4]
The Corporation acknowledges that this ground of appeal raises a question of law. Their argument is, however, that it is only capable of one answer. 
[5]
With respect to the Corporation, I do not accept that matters are quite as straightforward as they suggest. Mr Schmidt notes that the Corporation's approach is discussed in Kenyon v ACC,2
| X |Footnote: 2
HC Wellington, AP258/00, 19 December 2001
where the High Court stated that to assess a person's ability to work without reference to non-covered disabilities was to depart company with the real world. Examples previously given include a blind airline pilot or a ballet dancer with one leg. Clause 29(2) of Schedule 1 specifically requires the assessor to identify any conditions that prevent the claimant from having vocational independence that are not related to their injury. 
[6]
The issue that this case raises, and I must say has arisen in respect of cases this Court has considered, is whether non-injury limitations are required to be taken into account when addressing the work types available. 
[7]
It is clear from the detailed submissions of Mr Schmidt that the argument is made on a bona fide basis, and that he has arguments that need to be considered to reach a conclusion on that issue. It is not for me to determine that issue; but simply to say that the matter appears on the face of it, at least, to be arguable. I grant leave on this question. 
Tests applied 
[8]
So far as the next two questions are concerned: 
“(2)
Should the District Court have taken into account sections 20 and 26 of the Act when applying the wholly or substantially test? 
(3)
In regard to the answer to question 2, on the medical evidence before the Court, does this result in CDH condition attracting cover? ”
[9]
Again, the Corporation seemed to acknowledge that these are questions of law, but say that the decision did not address this as the primary issue of the decision and therefore it cannot be susceptible to appeal. 
[10]
Looking at the decision on appeal of a District Court decision it is clear that the question of the CDH condition was not only discussed but decided by the Court. Its centrality in a context of a decision of this sort is, of course, difficult for me to measure without a detailed analysis of the case and the law supported by it. I do not consider that that is the role of this Court in considering leave. 
[11]
Again, I have concluded that, given this is a question of law, the question I must ask myself is whether it is raised on a bona fide basis and raises a serious question. Whether the statement constitutes the ratio of the decision or not is a matter that would need to be argued on appeal. However, the issue was certainly determined by the Court, and I think at least it is arguable that it was determined as an element of the decision, rather than simply as obiter
[12]
The question of whether sections 20 and 26 of the Act are relevant when applying the wholly or substantially test appears to me a question of some importance, and on this basis I am prepared to grant leave. I am somewhat more concerned about the issue of its application to cover. 
[13]
I accept Ms Becroft's submission that this was not a case about cover. However, on balance I think it is for the High Court to make a determination as to whether or not it should answer this question. It may be helpful to the parties to have a determination on this question. But, depending on the answer to other questions, it may become irrelevant if other questions are answered in the negative. 
Outcome 
[14]
Overall, my view is that the questions are questions of law; that they are raised on a bona fide basis; and they do raise a serious question. I think the third question only arises as a corollary to the previous question, to give it some practical import. It appears to me that costs should be reserved pending the outcome of the decision. 


[2005] NZACC 274
HC Wellington, AP258/00, 19 December 2001

From Accident Compensation Cases

Table of Contents