Skip to Content, Skip to Navigation

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

Gray v Accident Compensation Corporation (HC, 05/02/03)

Judgment Text

France J
This is an appeal on a point of law under s 165(1) of the Accident Insurance Act 1998 from a decision of a District Court Judge dated 17 January 2001. The way in which this matter has developed means it can be disposed of fairly briefly. 
In the decision of 17 January 2001, the District Court Judge upheld the review officer's decision that the respondent was correct to decline the appellant ongoing entitlement to compensation on the basis that her current symptoms (back pain) were not related to the injury for which cover was initially granted in 1990. Rather, the symptoms related to a degenerative back condition. 
The matter was argued before the District Court Judge on the basis that there was an issue as to how cover and entitlements could be lost. This involved consideration of which definition of “personal injury by accident” applied. The definition of “personal injury by accident” in the Accident Compensation Act 1982 (“the 1982 Act”) provides that the term includes the “physical and mental consequences of any such injury or of the accident:”. In terms of s 2(l)(b), the following is excluded, 
Damage to the body or mind caused exclusively by disease, infection, or the ageing process: ”
The Accident Insurance Act 1998 (“the 1998 Act”), by contrast, excludes personal injury caused “wholly or substantially” by the ageing process (s 29(4)). 
The matter was put to the District Court Judge by the respondent on the basis that the 1998 Act definition applied. I record here my finding that the medical expert advising the Corporation was asked to address the matter on the basis the test was “substantially”, not “exclusively”
The District Court Judge considered the later definition of “substantially” caused was the correct test. 
Leave to appeal to this Court was granted on the basis that there was a point of law to be determined, namely, which of the accident compensation schemes governed the case. The points on appeal accordingly reflect that issue. 
The position prior to the hearing of this appeal changed. The respondent now accepts that the 1982 test applies to the appellant and the appeal proceeded on that basis. 
Argument on appeal 
The respondent argues that the appeal should still fail because the District Court Judge made factual findings consistent with the “correct test” as asserted by the appellant. 
The appellant is referring to a passage in the judgment where, after noting the respondent's submission that the medical evidence showed that the current symptoms were caused wholly or substantially by the degenerative condition, the Judge said “I agree, but I put the position more strongly.” (para [51]). The Judge continued, 
“My interpretation of the medical evidence is that the appellant's back strain has resolved and the ongoing symptoms are solely related to degeneration. It is significant that medical reports do not refer to the appellant still suffering from the symptoms of a back strain. Rather, the evidence indicates the symptoms are due to degeneration and that, at most, the back strain for a time aggravated this pre-existing condition. ”
(para [52]).
The respondent makes the further argument that, in the end, the case did not turn on the transitional nature of the appellant's cover but rather on the issue of ongoing causation. The District Court Judge stated that the appellant's: 
“ongoing symptoms are due to degeneration which was not caused by the personal injury for which cover was given. ”
(para [53])
The respondent's arguments were, of course, more detailed. However, after reflecting on the matter, I do not consider it is necessary for me to decide the matter on the basis of those arguments. Rather, the matter can be dealt with in a narrow way. The way in which the matter has developed means that it has not specifically been addressed on the evidence applying the test the respondent now concedes is the correct test. 
The medical expert was not asked whether the damage to the appellant is caused “exclusively” by degeneration. Rather, the medical expert, Mr Hooker, was asked whether the cause was “wholly or substantially” the degenerative condition. Hence, Mr Hooker says: 
“To address the questions you have posed, the following comments are offered: 
Mrs Gray's condition is that of marked lumbo sacral degenerative change in her lumbar spine, with superimposed injury. 
In my opinion, the current condition must now be considered to be substantially on the basis of the pre-existing gross degenerative change rather than on the effects of the fall of more than nine years ago. 
The current condition, in my opinion, must be considered to be substantially on the basis of the degenerative condition and only minimally related to the fall of over nine years ago. 
To address now the questions that are particularly relevant to a Specialist Case Review, the following additional comments are offered: 
… the current condition which must now be considered to be significantly worse than that noted on previous occasions, must now be considered to be predominantly on the basis of the advancing degenerative changes. ”
(Report dated 30 July 1999) [My Emphasis]
It may be that at the end of the day that the District Court Judge's assessment would be consistent with what a medical expert will say when asked the correct question. However, it is not correct for the appellant's entitlements in the circumstances of this case to be finally determined without the evidence of the medical expert being more specifically directed to the proper test. It is relevant in that respect that the obligation is on the respondent to comply with the statutory requirements before removing entitlements. 
The appeal is accordingly allowed. The matter is remitted back to the District Court for re-hearing. I expect the respondent will need to obtain a further report from its medical expert. 
Costs should follow the event and are accordingly awarded in favour of the appellant on a 2B basis. I record that the hearing took less than one half day. 

From Accident Compensation Cases

Table of Contents