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Accident Compensation Cases

Malesic v Accident Compensation Corporation (DC, 22/08/16)

Judgment Text

Judge G M Harrison
This is an application pursuant to s 162 of the Act for the grant of leave to appeal the decision of Judge MacLean of 29 February 2016. 
By minute of Judge Henare of 16 March 2016 the parties were directed to file submissions, which been received, and thereafter the application would be determined on the papers. 
Judge MacLean was sympathetic to the appeal by Ms Malesic recording, however, that unfortunately the law was against her, 
The first issue to be determined on the appeal was the correct date for a treatment injury sustained by Ms Malesic. 
The procedure followed to determine that is set out by the Judge in paras [2]-[10] of his decision. 
It is unnecessary to repeat his analysis because following the provision of further information by Ms Malesic it was agreed by all parties that the date of the treatment injury was 13 November 1997. 
That being the case there was no evidence that Ms Malesic was employed on that date, and so she did not qualify for weekly compensation. 
Ms Malesic had undergone a laparoscopic cholecystectomy in April 1997 and suffered complications from that, accepted by the Corporation as being a treatment injury, for which she sought treatment on the agreed date of 13 November 1997. 
The claim for compensation was lodged with the Corporation by Wellington Hospital on 18 June 2012. On 19 July 2012 the Corporation issued a decision accepting cover for an abdominal abscess associated with retained intraperitoneal gallstones as a complication of the laparoscopic cholecystectomy. As noted, however, the Corporation did not accept the claim for weekly compensation. 
Ms Malesic's personal opinion was that her claim should be dealt with pursuant to the Accident Rehabilitation and Compensation Insurance Act 1992, which was apparently contrary to the view of her counsel at the appeal hearing, Mr J Miller. 
The Judge dealt with this issue at [13] of his decision. He said: 
“The combined provision of ss 34 and 38 (of the Act) mean that the matter is to be dealt with as a treatment injury under the current Act, not medical misadventure under for the former Act, and the date of the treatment injury is, as all now agree, not April 1997 or 4 September 1999, but 13 November 1997, for the reasons explained. ”
It seems, however, that the issue is academic only because no compensation was payable under either statute, Ms Malesic not being in employment on the relevant date. 
In arriving at his decision the Judge relied upon s 34(5) which provides- 
“To avoid doubt, a claim for cover for personal injury caused by medical misadventure before 1 July 2005 that is lodged for the first time on or after 1 July 2005 must be determined under the relevant provisions in force on or after 1 July 2005 (that is, it is to be determined as if it were a treatment injury). ”
Section 360 of the Act also confirms that the claim had to be considered under the 2001 Act. 
No question of law therefore arises with regard to the correct date for the treatment injury. In her notice of appeal Ms Malesic refers to further evidence being provided by her on 14 January this year, but clearly that was before the Judge when he reached his decision of 29 February 2016, and in any event was common ground between the parties. 
The next question of law posed in the application for leave appears to suggest that the Judge's decision was a reserved judgment rather than a decision and that the District Court should have issued a decision rather than the reserved judgment. 
A judgment is the effective order of a Court. In this case the judgment was to allow the appeal in respect of the adjustment to the treatment injury date, but to dismiss it on the issue of the substantive entitlement claim. 
A decision of a Court usually concludes with its judgment and also includes the reasons for that judgment. Rule 11.1 District Court Rules 2014 defines “reasons for judgment” as “(a) the written reasons given by a Judge for his or her decision.” The requirement for reasons was explained in Bellbooth v Bellbooth [1998] 1 NZLR 375Has negative litigation history or citing cases, having been wholly or partly reversed or overruled[Red]  by Smellie J as follows: 
“The importance of reasons to a litigant can hardly be over-emphasised. First they provide the assurance that the case put forward has been understood and considered. Secondly they provide a basis upon which a decision can be made as to whether a further challenge should be made. Third, and most important, they are the means by which a party who fails is able to understand why he or she has failed and how the Court reached its conclusion. Absence of reasons is fertile ground for the nurturing of a lasting complaint that justice was not done. ”
A “reserved judgment” is probably better described as a “reserved decision” within which the formal “judgment” of the Court is given. A “judgment” is sometimes referred to as a “decision”, but there is only one effective determination and that is “the judgment” explained by the reasons expressed in the “decision”
There would have been no different outcome on this appeal therefore if the determination had been described as a “reserved decision” rather than a “reserved judgment” and, consequently, no issue of law requiring reference to the High Court arises in this regard. 
For the reasons given, no definable questions of law arise from the application for leave or the Judge's decision and the application is dismissed accordingly. 

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