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Accident Compensation Cases

N v Accident Compensation Corporation (DC, 14/03/16)

Judgment Text

Judge G M Harrison
The applicant seeks leave to appeal to the High Court on a question of law against the decision of Judge LG Powell of 30 June 2015. 
In his decision the Judge allowed an appeal by the Corporation against a finding of the Reviewer that the injuries sustained on 14 May 2012 were not self-inflicted, the Corporation having determined earlier that they were. The effect of such a finding is that the applicant is entitled to treatment for his injuries but, pursuant to the provisions of s 119(l)(a) of the Act, he is not qualified to receive entitlements as a result of cover being granted in respect of the injuries. 
The facts are set out extensively in the decision and it is unnecessary for me to repeat them in detail. 
Suffice to say that on two previous occasions in 2007 the applicant was injured, suffering serious chemical burns to parts of his feet caused by quantities of “Glissen” which is a commercial cleaning agent containing a high concentration of liquid sodium hydroxide. 
In the first of the 2007 accidents the applicant suffered burns to one of his calves when splashed by Glissen. On the second occasion Glissen was present in his gumboots, resulting in burns which required the amputation of toes to his left foot, with burns being sustained to both feet. 
It was extraordinary, therefore, that the accident in May 2012 to both feet was again caused by quantities of Glissen present in the applicant's gumboots. 
The Judge assessed the evidence exhaustively. 
There was no evidence that any other person had placed the Glissen in the gumboots, nor that it was otherwise present in them at the commencement of the day's work because there were no burns to the soles of the applicant's feet. The only realistic cause of the accident according to the Judge was that the applicant introduced the Glissen to the boots. 
The Judge identified two issues. The first is whether there was sufficient evidence to support a finding that the applicant either “wilfully inflicted” or “with intention to injure himself” caused the injuries suffered in the incident. 
The second issue is whether, if “self infliction” is established, the disentitlement from entitlements does not apply because the injury was the result of mental injury as described in s 119(3). 
The Judge determined that the injury was self-inflicted, and that no mental injury was suffered because of the physical injury nor were the circumstances described in s 21 (which relates to mental injury caused by certain criminal acts) and 21B (which relates to cover for a work-related mental injury) present in this case. 
The application for leave to appeal alleges essentially that a finding of self-infliction amounts to a finding of fraud on behalf of the claimant for which a higher than usual standard of proof is required. 
That is not to be found in the Act. Section 156 of the Act provides that the Court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law. The section does not specify the standard of proof, but in all ACC hearings it is accepted to be the civil standard of proof on the balance of probabilities. In arriving at a decision on an appeal to it pursuant to s 149 of the Act, the District Court is constrained to apply the standard of proof applicable in civil proceedings and, in applying that standard, may hear evidence whether or not it would be otherwise admissible in a court of law. 
Through counsel, the applicant claims that the Judge failed to consider relevant evidence. He claims that, despite giving evidence himself, there is no finding in the judgment as to his credibility and why a conclusion different from that of the Reviewer was reached by Judge Powell. 
The second matter it is claimed was not taken into account was references in general practitioner letters that the applicant had reduced sensation in his feet, where the Judge notes there was no such medical evidence. All that needs to be said in that regard is that the Judge examined the evidence exhaustively, and he found specifically that there was no injury to the soles of the applicants feet, and by implication the evidence of reduced sensation in the feet is of no particular relevance. 
Against that, counsel for the Corporation records findings by the Judge at paras [27], [28] and [31] of the decision and his conclusion at [33] as follows: 
Taken together, I am satisfied that notwithstanding that the respondent's repeated denials, including in the course of cross-examination at the hearing of this appeal, and Miss Peck's entirely sensible submissions regarding the devastating consequences that the injuries suffered in the 14 May 2012 incident have had on the respondent, that the evidence before me, and in particular the results of the investigations undertaken by both the Environmental Health and Safety Manager and Ms Harvey is ultimately overwhelming that the respondent put the Glissen in his own gumboots. ”
(Underlining added) 
At [36] he said in part: 
“ … In such circumstances having concluded that the respondent indeed was responsible for placing the Glissen in his own gumboots, I have no doubt such was done intentionally and deliberately. ”
(Underlining added) 
These parts of the judgment confirm that the Judge indeed took into account the applicant's evidence in reaching his conclusion, Furthermore, his phrases, as underlined, indicate that rather than being satisfied on the civil standard that it was more likely than not that the injuries were self-inflicted, the Judge has entered the realm of being satisfied beyond any reasonable doubt that that was so. 
Even if therefore the higher standard of proof contended for by the applicant for self-inflicted injuries applies, and for the reasons given I do not accept that it does, the higher standard was obviously reached by the Judge in his conclusions. 
On the second issue, the Judge at [42] held that there was no evidence that the applicant's actions were the result of mental injuries suffered in the circumstances described in s 21 or 21B of the Act. None of the posed questions of law on behalf of the applicant raise any question relating to this issue. 
It is clear that the conclusion reached by the Judge was a determination of fact, namely, that the applicant introduced the Glissen into his gumboots constituting his injury as a self-inflicted one. 
No question of law has been identified. I note, in particular, the statement of the Court of Appeal in Northland Co-op Dairy Co Limited v Rapana [1999] 1 ERNZ 361Has Litigation History which is not known to be negative[Blue]  at p 363 where it was stated that care must be taken to avoid allowing questions of fact to be dressed up as questions of law. That is what has been attempted in this matter. 
For the reasons given the application for leave to appeal to the High Court is dismissed. 

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