ACCIDENT COMPENSATION CORPORATION V WARREN MCENTEER HC WN CIV 2008-485-1800
Leave to appeal was granted because the matter raises a clear question of law under s 32(1)(c) suitable for appellate determination and the requirements for leave under s 163, as informed by Waller v Hider, were met (and leave was not opposed). The certified question asks whether 'treatment' for an operation means...
Source-derived case information.
- Citation
- openlaw-a70374ae_d768_4e22_9e21_7cecb973094a.pdf
- Parties
- Appellant: Accident Compensation Corporation; Respondent: Warren McEnteer
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 26 March 2009
- Procedural Posture
- Application for Leave to Appeal Under S 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 / High Court Application for Leave to Appeal; Leave Granted and Question of Law Certified for the Court of Appeal
- Outcome
- Leave to appeal to the Court of Appeal granted on a stated question of law
- Legal Topics
- Interpretation of S 32(1)(c) (treatment Caused Injury), Leave to Appeal Under S 163, Scope of 'treatment' in Surgical Context, Case Stated Procedure
Source-derived case record
Summary, issues, holding and outcome
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Parties
Accident Compensation Corporation
Appellant
Warren McEnteer
Respondent
Procedural Posture
Application for Leave to Appeal Under S 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 / High Court Application for Leave to Appeal; Leave Granted and Question of Law Certified for the Court of Appeal
Legal Issues
- 1 Whether, for s 32(1)(c), 'treatment' when the treatment is an operation means the operation that was thought to be needed pre‑operatively or the operation that was needed once the patient's condition became apparent during the operation
- 2 Whether the requirements for leave under s 163 are met
Ratio Decidendi
Leave to appeal was granted because the matter raises a clear question of law under s 32(1)(c) suitable for appellate determination and the requirements for leave under s 163, as informed by Waller v Hider, were met (and leave was not opposed). The certified question asks whether 'treatment' for an operation means the operation contemplated pre‑operatively or the operation required once the patient's condition becomes apparent intra‑operatively.
Court Disposition
Leave to appeal to the Court of Appeal granted on a stated question of law
Orders
- Leave to appeal granted to the Court of Appeal on the certified question of law set out by the High Court
- Parties to confer on a case stated and submit it to the High Court for approval; submissions may include wording of the question of law
Full Case Text
Judgment text and source record
1 paragraphs
ACCIDENT COMPENSATION CORPORATION V WARREN MCENTEER HC WN CIV 2008-485-1800 26 March 2009IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008-485-1800UNDER section 162 of the Injury Prevention Rehabilitation and Compensation Act 2001 BETWEEN ACCIDENT COMPENSATION CORPORATION Appellant AND WARREN MCENTEER Respondent Counsel: P F Gorringe for Appellant P J Radich for Respondent Judgment: 26 March 2009JUDGMENT OF SIMON FRANCE J (Application for leave to appeal to Court of Appeal)[1] This is an application under s 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 for leave to appeal to the Court of Appeal. The requirements of s 163 are that there be a question of law. The parties accept that the fuller requirements are those identified in Waller v Hider [1998] 1 NZLR 412. [2] Having regard to the fact that leave is not opposed, and having regard to Court of Appeal's observations in Hornby v ACC [2009] NZCA 33, I give leave on the following question:When assessing, under s 32(1)(c) of the Injury Prevention, Compensation and Rehabilitation Act 2001, whether a personal injury caused by treatment is "a necessary part or ordinary consequence of the treatment" and where that treatment is an operation, is treatment to be taken to be the operation that was thought to be needed, or the operation that was needed once the nature of the patients illness became apparent during the operation?[3] The parties should confer on a case stated which should be submitted to me for approval. That may include submissions on the wording of the question of law. _________________________ Simon France JSolicitors: P F Gorringe, Barrister, PO Box 7098, Hamilton, email: pfgorringe@xtra.co.nz P J Radich, MinterEllisonRuddWatts, PO Box 2793, Wellington email: paul.radich@minterellison.co.nz