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Accident Compensation Cases

Kanara v Accident Compensation Corporation (HC, 17/11/06)

Judgment Text

MacKenzie J
This is an application for special leave to appeal against the decision of the District Court, given on 30 March 2005, on an appeal under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“The Act”). An application for leave was made to the District Court and refused in a decision given on 21 July 2006. 
Mr Kanara suffered multiple serious injuries in a motor vehicle accident on 31 July 1995. He is significantly impaired by internal organ damage, psychological damage resulting from head injuries, and his multiple fractures have left his frame permanently frail and damaged. Before the accident he had lived in spartan conditions. When invited to apply under his ACC cover for items which would assist him in his rehabilitation, he applied for certain basic items of household furniture, including a bed, a washing machine, and a refrigerator, none of which Mr Kanara had before the accident. ACC's liability under s 81 was succinctly described by Judge Ongley in the decision sought to the appeal in these terms: 
ACC is liable to provide aids or appliances if the requirements of Clause 13 of the First Schedule are met. Under s81 it must also be necessary and appropriate, required as a direct consequence of the personal injury, and be of a type normally provided by a rehabilitation provider. An aid or appliance is defined as any item likely to assist in restoring a person to independence. ”
He considered the evidence, including the various reports which had been obtained in respect to Mr Kanara, and said: 
There is no concrete evidence before the Court that these are not of a type normally provided by a rehabilitation provider, but I am bound to say that it might readily be inferred that rehabilitation providers furnish modified or special items while ordinary household items are provided by ordinary retailers. 
I find that Mr Kanara is able to satisfy the requirement that the items in question are required as the result of his injury, because he is a person whose pre-injury requirements were less than the vast majority of people. But unfortunately the three items are not of a type usually supplied by a rehabilitation provider … . ”
He then said: 
The result is unsatisfactory and probably unfair in this rather unusual case but it must follow from s81 of the Act. The appeal is therefore dismissed. ”
Mr Kanara now seeks leave to appeal. Leave may be granted only on a question of law. Counsel for the applicant formulates the question of law in her submissions in these terms: 
“The point of law in this case is a determination of the correct interpretation of section 81(4)(c)(iv) and the words ‘is of a type normally provided by a rehabilitation provider.’ ”
I do not consider that a question of law which would justify the granting of leave has been identified. In Bryson v Three Foot Six Ltd [2005] 3 NZLR 721, Blanchard J, delivering the judgment of the Court, said: 
An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable. 
An ultimate conclusion of a fact-finding body can sometimes be so insupportable — so clearly untenable — as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs ‘in which there is no evidence to support the determination’ or ‘one in which the evidence is inconsistent with and contradictory of the determination’ or ‘one in which the true and only reasonable conclusion contradicts the determination’. ”
In this case, the issue involved is essentially one of fact, namely whether the aid or appliance required is of a type normally provided by a rehabilitation provider. That is in my view clearly a question of fact, to be resolved on the evidence. 
Furthermore, as I pointed out to Mr Thistoll in argument, it is not the function of this Court to determine, in the abstract, the correct interpretation of the provision. The function of the Court is to apply the law to the facts of the case before it. Where it is necessary to interpret a statue in the performance of that function, then the Court will do so. However, it does so by interpreting the provision so as to enable it to deal with the case before it and not to make some general pronouncement as to the law. It became apparent in the course of argument that the appellant seeks to establish a general proposition that beds, even if not modified, may come within the scope of the provision. But that can be considered only to the extent that there is some evidential basis upon which the Court could conclude that unmodified beds are an appliance “of a type normally provided by a rehabilitation provider”. The term “rehabilitation provider” is not defined, but the term “rehabilitation” is. Some examination of what comes within the scope of the term “rehabilitation provider” would be necessary. Some consideration of what is necessary to come within the term “provided” may also be necessary. Those issues might conceivably raise a question of law. But, to the extent that they do, I am satisfied they would not be appropriate to grant leave to appeal in this case. As Judge Ongley has noted, there is no evidence on the point, and the factual matrix within which these issues would have to be argued in this case is quite inadequate to make this case a suitable one for the granting of leave. 
Judge Ongley expressed the view that the result in this case is unsatisfactory and probably unfair. A Court will always strive to avoid such an outcome. But it must apply the law. And it must apply it to the facts as proved before it. It is desirable to emphasise the importance of ensuring that the relevant facts are placed before the Court. 
In the circumstances, leave must be declined. 
Mr McBride indicated that costs would not be sought. There will be no order as to costs. 

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