Astwood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 58 /98 IN THE MATTER of an application for leave to appeal under section 97 of The Accident Rehabilitation and Compensation Insurance Act 1992 BETWEEN ERIC VERNON ASTWOOD DCA 225/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL This is an application on the papers for leave to appeal pursuant to section 97 of The Accident Rehabilitation and Compensation Insurance Act 1992 on the ground that the decision is erroneous in point of law. The issue for determination before this Court was whether there was sufficient evidence to establish that the applicant had suffered personal injury as a result of an accident. It had been the Corporation's decision, confirmed on review, that the applicant had not satisfied the Corporation that he had suffered personal injury by accident. 2 At the hearing before His Honour Judge Middleton the matters traversed were entirely matters of fact based on the evidence, both documentary and oral and after considering the evidence the Learned Judge determined "I have the same doubts as the Review Officer as to the veracity of the appellant when he claimed to have suffered an injury which was sufficient to result in an incapacity at work in February 1996 when during the previous week he had participated in a bowling tournament." His Honour's decision involved a weighing of the evidence and coming to a decision on it and he ruled that on the balance of probabilities the appellant had not established that the Review Officer's finding was wrong. The applicant contends that the decision is erroneous in point of law and it is contended that the Judge's findings, as stated above, are against the weight of evidence of doctors, the appellant himself, and others who gave evidence on his behalf. In that regard the applicant refers to the Court of Appeal decision of Ogilvy and Mather (NZ) Ltd v M G Turner (CA 16/95) where the Court of Appeal said that whilst questions of credibility and weight to be accorded to particular evidence were matters for the Judge, where evidence is rejected not on the grounds of credibility or on the basis of weight but on the basis of relevance, such a finding goes beyond the area of a finding of fact and discloses an error of law. In this appeal there is no suggestion that any evidence was rejected on the basis that it was not relevant and therefore, I find that the principle enunciated in the Ogilvy and Mather decision is not applicable in this instant case. 3 In his decision the Learned Judge has indicated that he has considered all the evidence that had been adduced, both by the applicant and by the Corporation, and having done so he came to his decision. In those circumstances, that decision is not one which can be the subject of an appeal on an error of law. Accordingly leave to appeal to the High Court is refused. DATED at WELLINGTON this | day of April 1998 M J Beattie District Court Judge Astwood.doc(gm)