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Accident Compensation Cases

Elliston v Accident Rehabilitation and Compensation Insurance Corporation (HC, 21/10/02)

Judgment Text

Durie J
Gwenda Elliston applies for special leave to appeal to this Court from a decision of the District Court declining her appeal against a determination of the Accident Rehabilitation and Compensation Insurance Corporation. The Corporation had determined that Ms Elliston was not entitled to weekly compensation under the Accident Rehabilitation and Compensation Insurance Act 1992. 
Ms Elliston was informed of this hearing today and has filed submissions as directed, but in doing so she advised that she was unable to attend the hearing. On reading her letter, I take her to mean that attendance is difficult as she lives in Tauranga but that her application should be dealt with having regard to her submissions. In any event, she did not appear and she has not requested an adjournment. Mr Trainer appeared for the Corporation. 
Ms Elliston suffered a neck injury while lifting a trailer in October 1995. Six months later she sought cover for treatment and in July 1996 she sought weekly compensation. This accident was the third reported (at least). She had earlier claimed in respect of accidents on 8 September 1988 and 23 April 1992. 
Sections 37 - 43 of the Accident Rehabilitation and Compensation Insurance Act 1992 provided for weekly compensation cover. The essential matters that Ms Elliston had to establish were first that she was incapacitated by the injury and second that she was earning immediately before the commencement of that incapacity. There is no dispute that she was incapacitated. A medical certificate so showed. The question is whether she was earning. The Corporation considered that according to its records she was not, concluded that Ms Elliston was not entitled to weekly compensation as a result, and noted that that conclusion was reinforced by Inland Revenue advice that tax returns had not been completed for the relevant period. 
The Corporation's position was upheld on review and was also upheld by Judge Beattie on an appeal to the District Court. Judge Beattie found on the evidence that she was not employed when her incapacity was medically determined in July, and that there was no evidence that she was incapacitated before then. In any event, however, he further found, after examining the evidence, that she was not employed at the time of her injury in October 1995. In that respect he discounted the evidence of Ms Elliston and preferred other evidence. 
Section 97 of the Accident Rehabilitation and Compensation Insurance Act 1992 provided that a party to an appeal who is dissatisfied with the decision of the District Court as being erroneous in point of law may, with the leave of the District Court, appeal to this Court. Later, the same was provided for in similar terms in s 165 of the Accident Insurance Act 1998. The District Court (Judge Barber) declined Ms Elliston's application for leave. She now seeks special leave from this Court. Throughout Ms Elliston has not been represented by counsel. 
Consideration of Application 
Placing a liberal construction on Ms Elliston's submissions as a litigant in person, I think she has sought to raise two matters. The first is that she was in fact employed at the time. The second is that the injury of 1995 exacerbated an old injury of 1988 and that Judge Beattie should have looked at the position as at 1988. 
As Judge Barber found, the first matter does not raise a question of law but a question of fact and, by virtue of the statute, this Court is able to consider only questions of law that arise in this matter. Judge Beattie was faced with conflicting evidence on Ms Elliston's employment status and reached a conclusion on that matter. There are times when a Court's handling or comprehension of facts may give rise to a question of law. However, I cannot see that any such question arises in this instance in relation to Judge Beattie's determination of Ms Elliston's employment status at the time of the accident or subsequently at the time that she was assessed as incapacitated. 
The second matter could conceivably give rise to a question of law as to whether the date of incapacity, and Ms Elliston's employment status, should have been assessed as at the date of an earlier accident in 1988. Put another way, was Judge Beattie wrong not to have investigated the circumstances of those injuries, which he had expressly declined to do? Judge Barber addressed this question as well and determined that that matter was not before Judge Beattie. He considered that if Ms Elliston wished to raise that matter she had first to approach the Corporation for a primary decision on that issue. 
With respect I totally agree. If there is any right or entitlement outstanding in respect of the earlier accidents, or if the 1995 accident exacerbated the consequences of earlier injuries so as to give rise to some further claim in respect of them, then properly, Ms Elliston should make a further claim to the Corporation. I do not determine that she is still able to do so, but I understand that there is in fact no impediment to a further application. Most especially I express no view as to her chances of success. All that I determine is that the matter is not a matter that Judge Beattie was able to deal with at the time and that I agree with Judge Barber in that respect. Mrs Elliston, having appealed a decision of the Corporation about an accident in 1995, could not tag onto the appeal matters relating to the earlier accident. 
Accordingly no question of law arises in relation to the earlier accidents because any questions about those accidents were not properly before the District Court. Rather than pursuing an application to this Court, it seems better that Ms Elliston should take up any matter relating to other accidents with the Corporation. 
The application for special leave to appeal is dismissed. 

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