Aria v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT AUCKLAND [2018] NZACC 73 ACR 78/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION UNDER SECTION 162 OF THE ACT FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW BETWEEN AUERUA ARIA Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 17 May 2018 DECISION OF JUDGE G M HARRISON [1] The estate of Mr Aria applies for leave to appeal to the High Court on a question of law against a decision of Judge Mathers of 11 April 2017. [2] The application was referred to Judge Henare and in a minute of 8 May 2017 she directed the filing of submissions by the parties following which the application would be determined on the papers. Those submissions have now been filed. Leave to appeal [3] "The contended point of law must be capable of bona fide and serious argument to qualify for the grant of leave." Impact Manufacturing (Doogue J, HC Wellington, AP 266/00, 6 July 2001). 2 [4] "Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed." Northland Co-operative Dairy Company Limited v Rapana [1999] 1 ERNZ 361, 363 (CA). [5] These principles are particularly apposite in this case. Brief history [6] Tragically, Mr Aria was drowned in a boating accident in 2017. [7] He suffered a serious leg injury as a result of a motor bike accident in 1974. He was not employed at the time, although he subsequently obtained employment. In May 2008 he ceased his employment owing to the condition of his right leg. [8] The Corporation paid weekly compensation to Mr Aria from 2008, that compensation being based on the injury sustained in 1974. However, the Corporation stopped payments on 28 December 2009 when it realised that the applicant was not an earner at the time of the injury in 1974. In ACC v Vandy (CIV-2010-485-1331) Gendall J, 25/11/10 it was held that in order to be entitled to weekly compensation a claimant must have been an earner at the time the personal injury was suffered and at the time the incapacity commenced. [9] The Corporation's decision to stop the payments was taken on review and appeal by Mr Aria and in the course of that process he sought compensation for the same period but on a different claim. [10] He suffered an abrasion injury to his right leg in April 2007 which became infected and led to an ulcer. [11] Following investigation, and receipt of specialist medical advice, the respondent issued a primary decision on 18 November 2015, determining that Mr Aria was entitled to weekly compensation on the 2007 claim for the period from May 2008, but not beyond the period that weekly compensation had been paid on the 1974 claim, that is 28 December 2009. 3 [12] At [24] of her decision, the judge said: Mr Tuigeregere submits that the evidence shows that from May 2008 Mr Aria had an ulcer which required surgery causing incapacity which caused him to leave his work. He was entitled to compensation because of this and received it. The ulcer caused problems throughout 2008 and by the end he underwent successful surgery performed by Mr Caldwell. By early 2009 the ulcer had healed. By mid to late 2009 the only treatment for the ulcer was six monthly surveillance. What in fact, Mr Tuigeregere says, was causing his inability to go back to work was a deformity of the ankle and knee which was caused by the 1974 injury. [13] At [23] the judge agreed with Mr Tuigeregere that the issue in the case was whether Mr Aria's incapacity from 2009 was caused by the injury in 2007. If not, then Mr Aria was not entitled to compensation if his inability to work from that time onwards was caused by the deformity of the ankle and knee resulting from the 1974 injury. [14] At [36] the judge said: Clause 48 of Schedule 1 clearly applies in cl 1(1)(b) to a new personal injury where a person suffers incapacity and where the person in cl 1(1)(e) is already entitled to receive weekly compensation. Of course Mr Aria was not entitled to weekly compensation from the earlier injury in 1974 so I cannot see how that clause assists Mr Darke's argument. The issue before the judge therefore was whether the covered injury of 2007 was the cause of Mr Aria's incapacity to return to work after 2009, or whether his incapacity arose from the deformity of his ankle and knee caused by the 1974 accident. Assessment [16] That issue is a question of fact. The passage I have quoted at [24] of the decision confirmed that by early 2009 the ulcer had healed and by mid to late 2009 it only required six monthly surveillance. [17] In determining the issue the judge referred to the reliance of Mr Darke, counsel for Mr Aria on various reports, from Mr Caldwell, the treating surgeon. The judge noted that in particular Mr Darke relied upon a statement from Mr Caldwell in May 2015: I would therefore say that he would not have been able to return to work as a boner due to the combined effective injuries in 1974 and 2007. 18] There was a further report from Dr Walls of 29 August 2015 where he said: In my opinion the main reason for declaring Mr Aria unfit for work would be the after effects of the 1974 injury (fixed flexion deformity of the knee and ankle and the vascular insufficiency). [19] At [38] the judge said: In my view the reviewer was correct in her decision. For my part Dr Walls' opinion, when considering the overall position and commenting upon Mr Caldwell's advice is to be preferred in concluding that the 1974 injury was causing the continuing incapacity. There is little different between Dr Wall and Mr Caldwell other than Mr Caldwell's reference to the combined effect of injuries in 1974 and 2007. [20] At [39] the judge concluded: Whether or not there was a combined effect, that in my view ceased to apply from 2009 when the abrasion injury and ulcer were successfully treated. What the late Mr Aria was unfortunately left with was the result of the 1974 injury. [21] That is clearly a finding of fact that the ulcer resulting from the abrasion injury in 2007 had recovered completely apart from six-monthly surveillance and that there consequently could not be a combined effect of injuries in 1974 and 2007 because the injury of 2007 had no ongoing effect, and therefore Mr Caldwell's comment could no longer stand. [22] The only conclusion available therefore was that the ongoing incapacity was as a result of the 1974 injury for which there was no cover. That is a finding of fact in respect of which there can be no appeal. 23] The application for leave postulates five possible questions of law for reference to the High Court. [24] The fundamental issue is whether there was any ongoing incapacity resulting from the 2007 injury. But the evidence was that that injury had healed with no ongoing incapacity. Read as a whole, and the lengthy references by the judge to the 5 medical evidence, led inevitably to the conclusion that there was no ongoing incapacity from the 2007 injury. [25] None of the posed questions of law challenge that conclusion of fact. [26] I therefore adopt the submissions of Mr Tuigeregere in refuting the potential questions of law as being no more than an effort to challenge that factual finding which is of course proscribed by the Rapana decision. [27] No question of law has been identified which is "capable of bona fide and serious argument" to qualify for the grant of leave - Impact Manufacturing. [28] The application for leave to appeal is accordingly dismissed. District Court Judge