Estate of McRae v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT WELLINGTON ITE KOTI-A-ROHE KI TE WHANGANUI-A-TARA [2018] NZACC 174 ACR 163/16 UNDER THE ACCIDENT COMPENSATION ACT 200 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN CARL JONATHAN HASTINGS AND DAVID SAUL BRISCOE AS EXECUTORS OF THE ESTATE OF LARAINE MCRAE ESTATE OF MCRAE) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Appearances: B Woodhouse for the applicant L Hansen for the respondent Judgment: 6 November 2018 JUDGMENT OF JUDGE A P CHRISTIANSEN [Application for Leave to Appeal] Background [1] This decision concerns the application of the Estate of McRae for leave to appeal a judgment of Her Honour Judge Walker. That judgment dismissed the applicant's appeal against a review decision declining cover for a work-related gradual process injury, namely mesothelioma which is a fatal lung disease that is almost always caused by the inhalation of asbestos fibres. [2] Mrs Mcrae was diagnosed with malignant mesothelioma in 2014. Mrs McRae died on 19 October 2016, she having challenged the Corporation's decline of her claim for cover for an asbestos-related condition on the basis that her exposure to asbestos was not work-related. That decision and another were challenged by Review. That and the other Review application were subsequently dismissed. Mrs McRae's appeal was filed on 15 May 2016, about five months before she died. The appeal was heard in September 2017 and a judgment issued in May 2018. [3] Her Honour Judge Walker concluded that the fact of work place exposure to asbestos had not been established. Consideration was given to s 30(3)(b), s 30(3A), s 33, and Schedule 2 of the Accident Compensation Act 2001 ("the Act") along with other provisions of the Act. Judge Walker dismissed the appeal having decided as a question of fact that work place exposure to asbestos had not been established. [4] Her Honour's reasons are summarised in the following paragraphs of the judgment: Conclusion [174] Pursuant to s 33 of the Act the test required is in s 30(3A) i.e. that the injury is one in Schedule 2. It is accepted that there is no argument here that Mrs Mcrae suffered from a Schedule 2 injury. That requirement is met. The second requirement is s 30(3)(b) requires a person is or has been in employment "that involves exposure ... to, dusts, agents, compounds ...", in this case to asbestos. This is not a causation question and on the balance of probabilities it lies with the appellant to establish Mrs Mcrae was "in employment which involved exposure to asbestos". [175] I find that a risk, or possibility of risk, from exposure to asbestos in her working environment has not been established. Although it is accepted that Mrs McRae worked in Lombard House somewhere between 1968/1969 and 1970/1971 I find the evidence, on the balance of probabilities, odes not establish that Mrs Mcrae was put at risk of being exposed to asbestos sufficient to bring about her health condition. [176] The only known information in respect to asbestos in any respect to the "fit out" at Lombard House, was a possibility only of some asbestos content in the malthoid bitumous fabric separator, specified as the damp proof course to separate timber from contact with the concrete. There is no specific evidence in respect to any renovation that any dust, let alone asbestos dust, was created. As stated in Ms Law's report: The building materials noted in the drawings and specifications were mainly timber, glass partition windows, metal frames, gibrator board and plywood lining, none of which are known to contain asbestos. [177] With respect to the natural and ordinary meaning of the phrase "employment that involves exposure", I find this does not mean or extend to employment where the only known exposure is a background or ambient exposure found everywhere in New Zealand were building renovations have been carried out from time to time. [178] I do not find there is any competing evidence that Mrs McRae has been involved in employment which involves her having exposure to asbestos. Relevant Legislative Provisions [5] These include: 30 Personal injury caused by work-related gradual process, disease, or infection (1) Personal injury caused by a work-related gradual process, disease, or infection means personal injury- suffered by a person; and (b) caused by a gradual process, disease, or infection; and (c) caused in the circumstances described in subsection (2). (2) The circumstances are- the person- i) performs an employment task that has a particular property or characteristic; or (ii is employed in an environment that has a particular property or characteristic; and (b) the particular property or characteristic- (i) causes, or contributes to the cause of, the personal injury; and (ii) is not found to any material extent in the non-employment activities or environment of the person; and iii may or may not be present throughout the whole of the person's employment; and the risk of suffering the personal injury- (i) is significantly greater for persons who perform the employment task than for persons who do not perform it; or (ii) is significantly greater for persons who are employed in that type of environment than for persons who are not. (3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is- a) of a type described in Schedule 2; and suffered by a person who is or has been in employment- (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or (3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. (4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). 57 Steps Corporation takes to action complicated claims for cover (1) This section applies to a claim for cover- . . . (b) for personal injury caused by a work-related gradual process, disease, or infection: (c) for personal injury caused by treatment: lodged outside the period stated in section 53. (2) The Corporation must take the following steps as soon as practicable, and no later than 2 months, after the claim is lodged: (a) investigate the claim- (1) at its own expense; and (ii) to the extent reasonably necessary to enable it to take the following steps in this subsection; and (b) either - i) make its decision on the claim and give notice of it under section 64; or (ii) decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the person of the extension, which must not exceed 2 months, that will be required. (3) The Corporation must take the following steps as soon as practicable, and no later than the expiry of the extension: (a) make a reasonable request to the person, or decide to make a request to another person, for the additional information; and (b) if the Corporation proposes to make a request to another person for the additional information, tell the person making the claim about the making of the request and its nature; and (c) make its decision on the claim and give notice of it under section 64. 60 Decision on claim for Schedule 2 injury The Corporation may decline a claim that a personal injury is a work-related personal injury of a kind described in section 30(3) only if the Corporation establishes that- (a) the person is not suffering from a personal injury of a kind described in Schedule 2; or (b) the person's personal injury has a cause other than his or her employment. Legal Principles [6] An applicant must demonstrate there is an arguable error of law which can serve as a basis for appeal. It is sufficient if questions of law identified are capable of bona fide and serious argument. Those errors can relate to the proper interpretation of a statutory provision, and there can be an error of law where there is no evidence to support the decision or the evidence is inconsistent with the decision. The Application for Leave [7] The applicant postulates the following questions of law for consideration: [a] In what circumstances can the Corporation decline cover for a Schedule 2 claim? [b] Did the Judge err in failing to consider s 60 of the Act? [c] What is required of the Corporation to fulfil its investigative obligations under s 30(3A) in Schedule 2 disease claims? [d] Did the Judge err in holding that the Corporation had fulfilled its requirement under s 30(3A)? [e] Does the wording in s 30(3)(b)(i) "has been in employment that involves exposure" require a claimant to establish that the exposure was realistic or significant? [f] Did the Judge err in law and in fact when finding that there was "no competing evidence" that Mrs Mcrae had been exposed to asbestos in the course of employment? [8] Regarding the first two questions ([a] amd [b]) counsel for the applicant submits that by s 60 the Corporation may decline a claim that a personal injury is a work related personal injury of the kind established in s 30(3) only if the Corporation establishes that: [a] A person is not suffering from a personal injury of a kind described in Schedule 2; or [b] The person's personal injury has a cause other than his or her employment. [9] Counsel submits that because it was agreed that mesothelioma was a Schedule 2 disease it follows that the only circumstance in which the Corporation could decline the claim was by establishing that the mesothelioma had a cause other than Mrs McRae's employment. Counsel submits that s 60 places the burden of proof on the Corporation in this respect and that the Corporation carries an affirmative obligation to establish that the personal injury has a non-employment related cause. [10] Counsel submits that: [a] It was insufficient to rely on the view of Dr Monigatti, occupational health advisor who had noted that Mrs McRae's condition may have been due to non work exposure or she may be among the small percentage of people in whom mesothelioma arises without apparent cause; there is no evidence to substantiate that claim or support the assertion made by that comment; and therefore the Corporation has failed to establish, as s 60 requires, that the mesothelioma had a cause other than her work place. [b] The Judge did not consider s 60 when holding that "both decisions of the Corporation are correct, and the decision of the Review Officer is upheld". [c] Questions [c] and [e] challenge the adequacy of the investigative duty arising under s 30(3A) in Schedule 2 disease claims; counsel asserting Mrs McRae had advised the Corporation she believed her condition arose from her exposure to asbestos during her employment at Lombard House and that the Corporation without adducing any evidence in relation to Lombard House had simply declined the claim on the basis that the claimant had "no known occupation exposure to asbestos"; and it was insufficient for Her Honour to hold that the Corporation fulfilled its s 30(3A) requirements when noting at [171], inter alia that there was no additional evidence that indicated a work related gradual process was responsible and Mrs Mcrae herself as well as the medical reports, raised other possible causative explanations. [d] It was not the applicant's responsibility to provide additional evidence in the first instance and that it was sufficient for the applicant to have advised that she felt her exposure occurred at Lombard House. [e] Regarding question [e] concerning the wording in s 30(3)(b)(i) "has been in employment that involves exposure" and requiring a claimant to establish that the exposure was realistic or significant, counsel submits that the usual requirements for causation in ss 30(1) and (2) of the Act do not apply because the consideration of "significantly greater risk" is not required when assessing cover for a Schedule 2 disease; and therefore all that is required is for the applicant to have provided information which draws a link between the work place exposure and the Schedule 2 disease and there is nothing in the statutory provisions requiring there to be a prescribed level of exposure; and therefore counsel submits the Judge erred in applying too stringent a test with respect to her assessment of causation under s 30(3)(b)(i). [f] Her Honour erred in law and in fact, when she found there had been no competing evidence that Mrs Mcrae had been exposed to asbestos in the course of employment; and thereby it is submitted the Judge's treatment of the facts amounted to an error of law or if there is no evidence to support the Judge's conclusion then that conclusion is unsustainable and should be set aside. 11] This latter question provides much of the focus of the Leave to Appeal application. Reference is made to paragraphs [161] to [166] of Her Honour's judgment where comment was made by reference to other factors of information Mrs McRae had provided, the effect of which undoubtedly influenced Her Honour's conclusions regarding the reliability of Mrs McRae's claim that Lombard House was the source of her condition and explains the conclusion of Her Honour at paragraph [178]: [178] I do not find there is any competing evidence that Mrs Mcrae has been involved in employment which involves her having exposure to asbestos. [12] Counsel submits with utmost respect to Her Honour, the way in which the applicant's evidence has been treated is manifestly unreasonable, such that the conclusions that have arisen from this ill treatment are unsubstantiated and ought to amount to an error of law. [13] In particular counsel asserts Her Honour ruled out any consideration of Mrs McRae's evidence or that from Dr Glass; including that when making her Corporation claim, Mrs Mcrae said she had not smoked, when there was clear medical evidence available of her having been a regular smoker at the relevant time. Counsel submits that evidence is irrelevant in any event because whether or not Mrs McRae was a smoker had no bearing on mesothelioma and therefore it was unreasonable that this factor was used to suggest Mrs McRae's evidence was unreliable. [14] Counsel submits it is unclear why Dr Glass's description of Mrs McRae as a "lucid and charming woman" only days before her death should have any relevance to the credibility of that evidence. [15] Therefore, it is counsel's submission that Her Honour's conclusion that the applicant had "no competing evidence" to contradict the Corporation's position is not a conclusion that was reasonably open to the Judge to make. [16] Regarding the submission on behalf of the Corporation that the leave to appeal application comprises factual based questions only, counsel for the applicant responds that while the last question deals with claims of a lack of competing evidence provided by or on behalf of Mrs McRae, that all other questions concern the correct interpretation and interplay of the statutory provisions of ss 30(3), 30(3A) and 60. Counsel submits the law is unclear on how these provisions inter react and are intended to be applied. Fundamental to the applicant's position is the position that if a person has a disease listed by exposure to a listed substance then ACC can only decline cover if it establishes that the disease is caused by factors other than work. Counsel records it having been noted by the Court of Appeal in Priddle!: [35] When s 30 is considered in context, we conclude that the intent of the legislature was to provide a separate means of cover under s 30(3) for those people suffering from the occupational diseases listed in Schedule 2 without them having to bring themselves within the definition in s 30(1) and, consequently, the circumstances referred to in s 30(2) at all. [36] To the extent there is any reference to the relevant provisions in the legislative history it supports the above interpretation. When the Select Committee reported the Bill back to Parliament they recommended an amendment to the draft Bill to clarify: .. . that a person who has the diseases listed in Schedule 2 does not need to meet causation requirements set out in cl 30 to establish cover. [37] The Select Committee sought to provide a different basis for cover for those claimants under, now, s 30(3). [38] The Committee also specifically recommended further amendments to clarify that lung cancer and mesothelioma caused by exposure to asbestos were covered. [39] As a consequence of the report s 30(3) was redrafted and s 30(4) was incorporated. [17] Counsel submits it was in keeping with this presumption of cover under s 30(3) that the Act provides a mechanism for which the Corporation can review the claim i.e. via s 60. 1 Estate of Priddle v Accident Compensation Corporation [2006] NZCA 297. [18] Counsel notes that the Court in Priddle considered the purpose of s 60 when assessing Schedule 2 claims: [40] ... Section 30(4) exempts Schedule 2 claimants from the necessity of an assessment of causation under s 30(1)(b) and (c) which is an exemption from assessment of all the circumstances set out in s 30(2). [41] Such an interpretation is also consistent with the saving provision for the Corporation, s 60. Section 60 provides that the Corporation may decline a claim based on a Schedule 2 injury, but only if the Corporation establishes either that the person is not suffering from the injury or the injury had a cause other than their employment. It would not be sufficient, for example, for the Corporation to prove that the particular property or characteristic of the work caused or contributed to the cause of the personal injury (as in s 30(2)(b)(i)), the Corporation must go further and prove that the disease was caused other than by employment. Again the test is different. [19] It follows, submits counsel, that's 60 provides the only avenue by which the Corporation could have declined Mrs McRae's Schedule 2 claim and in this case that the Corporation never engaged s 60 but instead speculated that there were other causes of the disease without proving the disease was caused other than by employment. Counsel submits the Corporation sought to dispute the level of exposure of Mrs McRae's work when a prescribed level of exposure is irrelevant or only the requirement of exposure is required. [20] Counsel asserts that the building records show that renovations involving asbestos were undertaken at Lombard House and as well there is the report of Professor Glass which supports Mrs McRae's claim. The Applicant's Case [21] Regarding the Corporation's position that it was not satisfied there had been work place exposure and its position that the onus shifts to it only once the relevant exposure is proved on the balance of probabilities, counsel submits this is incorrect and at odds with Priddle, and is also inconsistent "with the plain reading of the provision". It follows therefore that in order to reject Ms McRae's claim the Corporation had to show that the mesothelioma had a cause other than her employment; and that there is no requirement that s 30(3) must first be "proved" before s 60 can be invoked. [22] Concerning proposed questions [c] and [e] and the Corporation's response that "Dr Monigatti was not satisfied that there had been work place exposure and a decision declining cover was issued", counsel submits there had been no effort to obtain records concerning the work place exposure at Lombard House as Mrs McRae claimed had occurred. It seems, counsel suggests, that the Corporation's position is that the claimant would have had to be in an occupation closely correlated with asbestos exposure in order to attract cover. Counsel notes this is not a requirement under the Act and all that is required is that Mrs McRae had exposure during a period of paid employment. Further that no effort had been made to clarify Mrs McRae's assertion of work place exposure and therefore the Court's finding that the Corporation had fulfilled its investigative duties was incorrect. [23] Regarding question [e] involving the words in s 30(3)(b)(i) "has been in employment that involves exposure" counsel submits Her Honour imposed too high a standard than what is required in stating that a claimant must provide "evidence of a realistic or significant exposure" to asbestos in order to meet the evidential burden of s 33(b)(i); a higher standard it is submitted, than Judge Ongley had held in Bird when His Honour held there needed only to be "some discernible element of probable exposure" to satisfy the limb. [24] Counsel submits there is no legislative requirement under that provision that Mrs McRae showed real or significant exposure to asbestos in employment, as was held by Her Honour. Therefore, submits counsel Her Honour's interpretation of that provision gives rise to an arguable error of law. Counsel submits the ACC jurisdiction is in need of guidance from an appellate Court on this issue. [25] Regarding question [f] and whether the Judge erred in law and in fact when she found there was no competing evidence that Mrs McRae had been exposed to asbestos in the course of her employment, counsel submits it is plain from that statement that Her Honour found the applicant had not presented any competing evidence to that provided by the Corporation. Such a statement, counsel submits, is plainly wrong. Counsel does not accept the Corporation's position that the Judge's comments on Mrs McRae's credibility were immaterial to Her Honour's overall conclusion because Her Honour had unequivocally rejected Mrs McRae's evidence on the basis of "credibility issues" and it was because of that rejection that Her Honour in turn found that she was "not able to place reliance on Professor Glass's report" relating to his discussion with Mrs McRae. [26] Counsel submits the rejection of Mrs McRae's evidence was absolutely material to Her Honour's overall conclusion and therefore having rejected that evidence without first allowing a response from the applicant was inconsistent with natural justice. The Case in Opposition [27] Counsel for the Corporation has provided her own assessment of relevant facts, by reference to the proposed questions of law offered for consideration. 28] Regarding whether the Corporation fulfilled its investigative duty under s 30(3A), counsel observes the evidence discloses the Corporation obtained the relevant medical records and as well information from Mrs Mcrae which was referred to Dr Monigatti, and who concluded there was insufficient evidence of work place exposure. [29] Counsel submits Her Honour carefully detailed why she considered the Corporation had fulfilled its investigative requirements, noting that Mrs McRae had raised other non-work related possible causative explanations. [30] Regarding whether Mrs McRae had been in employment that involved exposure (s 30(3)(b)(i)), counsel for the Corporation notes the Judge determined that what is required is "evidence of a realistic or significant exposure, and to a degree of higher than just being in the atmosphere", and that Her Honour cited Judge Ongley in Bird stating that the expression "employment involving exposure" is descriptive of employment that has some discernible element of probable exposure in the employment task or environment. 2 Bird v Accident Compensation Corporation [2011] NZACC 26. Considerations [31] As earlier noted Her Honour's assessment of the facts is contained in paragraphs [174]-[178] of the judgment. It noted that Mrs McRae's injury was of a Schedule 2 type. Her Honour stated that it was then for Mrs Mcrae to prove on the balance of probabilities that she was in employment which involved exposure to asbestos. Her Honour concluded that a risk or possibility of risk from exposure to asbestos in her work environment had not been established even though she worked in Lombard House those 50 or so years ago. Her Honour said the evidence did not establish she was put at risk of exposure to asbestos sufficient to bring about her health condition. Her Honour's concerns were: [a] The lack of information in respect to asbestos in any respect to the "fitout" at Lombard House and considered there was a possibility only of some asbestos content in the damp proof course that separated the timber from contact with concrete. [b] The lack of specific evidence in respect of any renovation that any asbestos dust was created. [c] The phrase "employment that involves exposure", Her Honour finding that that phrase does not mean or extend to employment where the only known exposure is a background of ambient exposure found everywhere in New Zealand where building renovations have been carried out from time to time. [32] Judge Walker's focus was on how Mrs McRae could have been exposed to asbestos. That evidence suggests two possibilities. One of those concerns a home renovation in 1966/67 prior to Mrs Mcrae working at Lombard House when asbestos was removed. The second concerned the interior fit out at Lombard House a year or so later which involved building materials that contained asbestos and in particular Malthoid damp proof course. [33] Her Honour extensively reviewed the evidence including the three reports of Dr Monigatti and a report of Professor Glass. Her Honour determined there was insufficient evidence to establish exposure on either occasion; noting by reference to Dr Mongatti's enquiry regarding the home renovation that even if the materials were asbestos in part and were replaced there was no evidence that any materials were cut or damage done to them at the time. Concerning the Lombard House option the learned Judge again adopted the finding of Dr Monigatti noting that the Malthoid bituminous fabric separate (assumed to be the asbestos source) was regarded to be a non-fibre asbestos product. [34] It is contended for Mrs McRae that the Corporation had to accept the claim unless it proved the mesothelioma was caused other than by Mrs McRae's employment. Respectfully that is not a correct statement of the law and overlooks the requirement of s 30(3) that exposure to asbestos in the work place needs to be established. It follows therefore that the requirement to consider s 60 does not arise if the Corporation is not satisfied there has been a work place exposure. [35] It is only if the relevant exposure is proved on the balance of probabilities that the onus shifts to ACC under s 60 which will only permit the Corporation to decline a claim suffered by a person who has been in employment that involves exposure to, inter alia, asbestos. [36] Then s 60 will allow a claim to be declined if the Corporation establishes the person is not suffering from a Schedule 2 type injury or the person's injury has a cause other than his or her employment. [37] As is clear from Priddle the Court of Appeal held that s 30(3) was not an extension of the general provision for work-related gradual process injury, but that s 30(3) stands on its own and meaning must be given to the expression "employment involving exposure". In that case, as counsel for the Corporation submits, the Court held that all that is required under s 30(3) is proof of work place exposure. [38] Counsel refers to the decision of Judge Ongley in Bird v Accident Compensation Corporation, who accepted: 3 [2011] NZACC 26. There was no evidence of the asbestos in the building being disturbed, or that the mouldings would actually have contained asbestos. If there had been asbestos in the buildings in question it may have been in a sealed or stable condition not creating exposure, and the mouldings may never have contained asbestos. Therefore the question of exposure was only a risk or possibility. [39] Judge Ongley concluded: Employment involving exposure is descriptive of employment that has some discernible element of probable exposure in the employment task or environment. If there had been asbestos dust, for example from a grinding process or disruption of asbestos fabric, the cover would be available without proof of causation, subject to a reverse onus in s 60. [40] Counsel for the Corporation submits that the applicant mischaracterises s 60. Counsel asserts it is a reverse onus provision applicable only if the applicant has established work place exposure; once the presence of asbestos is established in the work place causation is no longer required, and the onus reverts to the Corporation to disprove work place causation. Conclusions [41] The applicant's case in effect was that Mrs Mcrae had been exposed to asbestos at higher than background or ambient exposure. Of that Her Honour clearly endorsed the view of Professor Glass who said that the exposure "[needed to be] in addition to the general background level of "all adults" and would have [to have] been significantly above a further background level [than] would have been a (non- trivial) exposure [to] adequately explain Mrs McRae's mesothelioma. [42] Issue is taken with Her Honour's conclusion at [178] that she did not find there was any compelling evidence that Mrs Mcrae had been involved in employment involving her being exposed to asbestos. [43] Counsel for the Corporation submits it is reasonably clear from this conclusion that the Judge rejected the evidence of Ms Law and Professor Glass as being sufficient to confirm exposure by Mrs Mcrae in the work place; and that instead she preferred the evidence of Dr Monigatti. Summary/Assessment [44] The Judge's summary/assessment of the evidence provides about one third of the judgment paragraphs. Her Honour found there was not any compelling evidence of being involved in employment that involved her being exposed to asbestos. Her Honour's statement by that conclusion does not mean there is no evidence to the contrary. In fact as is clear from Her Honour's judgment all of the evidence provided upon the appeal was comprehensively reviewed - including that on behalf of Mrs McRae. Conclusions reached regarding the evidence of Professor Glass and Ms Law were provided after a thorough assessment had been made. When rejecting that evidence reasons for those conclusions were provided. Ultimately Her Honour accepted Dr Monigatti's evidence that the evidence did not demonstrate exposure of more than normal background range. Counsel submits and the Court agrees that conclusion was available to Her Honour on the facts and it is not strongly arguable to contend that Her Honour has erred in so finding. [45] Respectfully this decision agrees with that assessment of counsel for the Corporation as it does with the process adopted by Her Honour who was satisfied that work place exposure to asbestos could not be established on the balance of probabilities. It follows that there was then no need to apply s 60. If's 60 was to apply then there has to be proof of work place exposure. It follows that it is not correct to assert the Corporation was required to and failed to establish that Mrs McRae's mesothelioma was caused by something other than work place exposure. 46] Counsel for the applicant contends Her Honour misunderstood and misapplied the Corporation's investigative obligations because of the type of injury involved which it was submitted subjected the Corporation to s 60 investigative obligations. [47] This judgment does not agree with that assessment, nor accepts an arguable question of law arises. It is not correct that the Corporation could only decline the claim if it could establish the mesothelioma had a cause other than Mrs McRae's employment. That statement overlooks the requirement in s 30(3) that exposure to asbestos in the work place needs to be established on the balance of probabilities. Unless there has been a work place exposure then the Corporation's s 60 investigative obligations do not arise. [48] It seems to this Court that the primary basis of the application for leave concerns a challenge of the factual findings of the Judge that there was no work place exposure. As such there is not a sufficient basis for leave to appeal to be granted. Judgment [49] The application for leave it dismissed. [50] If costs are to be sought then counsel are to file and exchange submissions for a decision to issue in due course. Judge A P Christiansen District Court Judge Solicitors: John Miller Law, Wellington for the appellant Lisa Hansen, Barrister, Wellington for the respondent ACR 163-16-Estate of McRae-LTA