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Accident Compensation Cases

Condliffe v Accident Compensation Corporation (HC, 14/05/03)

Judgment Text

Doogue J
The appellant has leave from the Accident Compensation Appeal Authority to appeal from a decision of that Authority of 12 July 2001. At issue is the question of whether the Authority misdirected itself as to the nature of the requisite evidence to establish that the appellant was in need of “constant personal attention” under s 80(3) Accident Compensation Act 1982 (“the Act”) for the period from December 1991 to November 1992. 
It is common ground that the appellant when aged 16 months suffered brain damage after a car reversing out of a driveway ran over his head on 16 December 1991. As a result the respondent accepted there was a claim under “the Act” but there was argument as to the extent of that claim. 
There was no dispute in respect of the period from November 1992. The dispute as stated is only in respect of the earlier period from the discharge from hospital until November 1992. Unfortunately the medical records relating to the appellant during that period were not available. 
The respondent declined the claim for attendant care for that period in a decision dated 2 June 1999. 
The appellant applied for a review of that decision which was heard by a Hearing Officer on 16 May 2000. The Hearing Officer on 20 July recommended that the respondent's decision be confirmed. The Hearing Officer reached that conclusion upon the basis that: 
“ … the evidence required is that of medical specialists, and this simply is not available. ”
The appellant appealed from that decision. 
The Authority first directed itself as follows: 
The issue arises to be determined following the decision of the High Court in ARCIC v Campbell [1996] NZAR 278. That decision in the High Court established that ‘constant personal attention’ meant 24 hours per day personal attention by reason of accident. The evidence from the appellant's mother was that she had provided her son with personal attention for the period between December 1991 and December 1992. 
In order to qualify, the appellant must bring his situation within the requirements of section 80(3) of the 1982 Act which states: 
Compensation for pecuniary loss not related to earnings- 
Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution. ’”
As the Court indicated in the Campbell decision, the issue of what constitutes ‘constant personal attention’ has to be determined by the medical evidence. ”
The Authority then went on to review the evidence of four specialist therapists and a neurologist before it and determined: 
The appellant's parents gave evidence before the Review Officer which related to the nature of the help and assistance they gave their son during the period immediately following the accident. This evidence did establish that they were required to provide supervision and help but I do not consider that it consists of medical evidence which would satisfy the guidelines established in the Campbell decision. 
While Mr Miller referred to a specialist report in relation to the effects of brain injuries, I do not consider that that is helpful in so far as this appellant is concerned. The medical evidence must be specific to the appellant and must demonstrate a need for 24 hour attendant care, in some form or other, as identified by the necessary medical specialists. I do not consider that the 24 hour attendant care necessarily means that someone is constantly present with the appellant throughout the whole of the 24 hours. However, it does contemplate the need for someone to be there to provide assistance at all times based on the assessed medical needs of the appellant. I do not consider that the 24 hours per week as assessed in relation to the 1992 Act amounts to a need for constant personal attention. Furthermore, the findings of the various specialists associated with the appellant in the intervening period and shortly thereafter indicate an improvement and demonstrate that there was clearly no requirement for constant personal attention as envisaged by section 80(3) of the 1982 Act. ”
As already traversed leave was given by the Authority to appeal the Authority's determination that the issue had to be decided by medical evidence. 
The case for the appellant is that the decision of this Court in Campbell did not require medical evidence to establish that the appellant needed “constant personal attention” for the purposes of s 80(3). It is therefore submitted: 
The case should be remitted to the District Court as the present relevant appellate body. 
There should be a direction that the absence of medical evidence is not fatal to a claim for attendant care under s 80(3) and that the evidence of the parents of a claimant of such a need may also be considered. 
The case for the respondent is that the alleged issue of law does not arise from the decision under appeal and that evidence other than medical evidence was specifically addressed and considered by the Authority. Further it is submitted that the Authority determined as a fact on the basis of the evidence that the appellant did not at the relevant times meet the high statutory threshold of “must have constant personal attention”
The basis of the respondent's case is that the only point before this Court is whether the medical evidence in question must be “contemporaneous medical evidence” and that the respondent has never suggested that that is so and that the Authority has never decided that that is so. 
The respondent submits that the Authority was adopting a loose or general meaning to the words “medical evidence”. This was because the Authority discussed the evidence of therapists in that context. That is as may be but it does not touch upon the true issue in this case. 
The respondent submits it is assisted by s 87 of the Act and statements in Campbell. It submits that the Authority was recognising the need for objective as opposed to subjective evidence. 
It is quite clear that leave was given to appeal to this Court in respect of the Authority's determination in paragraphs 6, 13 and 14 of its decision set out above that the question before it had to be decided by medical evidence. The words “contemporaneous medical evidence” have been referred to both in earlier argument before the Authority and the appellant's points of appeal. That is understandable as the case only arose because of the absence of such evidence. However, any reading of the decision of the Authority under appeal and of the decision to grant leave to appeal makes it clear that the decision to grant leave to appeal is from what the Authority had determined and not from anything else. What the Authority said was that the issue of what constitutes “constant personal attention has to be determined by the medical evidence”. That is what is in issue and that is what the Authority gave leave to appeal against. 
There is nothing in s 80(3) or as I understand it in the Act as a whole or in any subsequent relevant Act or relevant regulations as to the nature of the evidence which requires to be lead to satisfy the requirements of s 80(3). I have been referred to s 87(1) of the Act. It enables the respondent to require a claimant to submit to medical examination. It is irrelevant so far as evidentiary and probative issues are concerned. 
Section 109(5) of the Act enabled the Authority to receive in evidence any material that would assist it whether admissible in a Court of law or not. The Review Officer had a similar power under s 102(7) of the Act. It is common ground those provisions are still extant. They speak against any narrow view of what evidence is probative. The issues are rather of relevance and weight. 
There is nothing in Campbell that touches upon the nature of the relevant evidence under s 80(3). In Campbell any discussion of the evidence was in the context of that case. The Court at no time expressed any view as to how issues under s 80(3) were to be determined, let alone where there were no contemporaneous medical records. It expressed views on the basis of the medical evidence before it. It discussed the respondent's discretion under s 80(3). It went no further. In relying upon Campbell the Authority was in error. 
No doubt as a matter of common sense everyone would agree that contemporaneous medical views were likely to give the best guide as to the application of s 80(3) but even they would be open to dispute and would not be binding upon the respondent or a Review Officer or the Authority. Probative evidence could well include that of the actual primary caregivers, whether the parents or otherwise, any person assisting in the care of the injured person other than the primary caregivers and any other person who could speak as to the facts relevant to the determination. The evidence may well include the observations of health professionals involved in the care or supervision of the injured person. Such evidence may well be more objective than that of some lay observers but not necessarily of all. However, it still requires evaluation along with all other relevant evidence. In addition it may well be open for other medical witnesses with the necessary expertise to express an opinion on the basis of the other evidence available. The issues are not the occupation or qualifications of a witness but the relevance of the evidence given and the weight to be given to it. Relevant or probative evidence cannot be excluded simply because it is not medical evidence. 
There is simply nothing which justifies the Authority reaching the conclusion that it did that the issue of what constitutes “constant personal attention” “has to be determined by the medical evidence”. Significantly the respondent can point to nothing pertinent which supports such a view. 
Nor can it be said, as the respondent submits, that the Authority's decision was one of fact made independently of the earlier view of the Authority as to the requisite probative evidence. It is quite clear that the Authority's final determination in paragraph 14 of its decision under appeal is upon the basis that the appellant had to establish “the need for someone to be there to provide assistance at all times based on the assessed medical needs of the appellant: my emphasis. In so finding the Authority once again clearly misdirected itself in respect of the law as there is nothing in the provisions of s 80(3) or anywhere else that I have been referred to which requires the determination to be made in that way. This is not a case where the appeal is endeavouring to dress up facts as law but a clear case where the Authority has misdirected itself in a prescriptive fashion as to the nature of the probative evidence determinative of the issue before it. As a consequence the Authority has clearly erred in law. 
The only possible remedy is for the appeal to be reheard having regard to all relevant evidence as to whether or not the appellant had to have “constant personal attention” between December 1991 and November 1992. It will be clear from what I have said above that such evidence is not limited to medical evidence, however defined. 
The appellant is entitled to costs on a 2B basis under the relevant schedules to the High Court Rules. In addition the appellant is entitled to any reasonable disbursements. In the event of there being any dispute as to the costs and disbursements they are to be determined by the Registrar. 

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