Hill v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 73 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JAMES COLIN HILL of Hamilton Appellant (Appeal No. DCA 133/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Ac Respondent Counsel Ms J M Screech for appellant Mr J D Palmer for respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT Background to the Application The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 1 September 1998 under No. 189/98. 2 The issue in the case was the correctness of the Corporation's decision of 26 June 1997 to cancel the appellant's entitlement to weekly compensation. The Corporation had decided that the appellant's incapacity at material times was not related to an injury he sustained on 5 March 1995, that there was no evidence of any residual problems from that injury, and that his incapacity at material times was caused by degenerative changes in his knee. The appellant had sustained a fracture to both lower legs in 1951 at the age of 15. He recovered completely and had no further problems with his knees, ankles or lower legs until an accident on 5 March 1995. Then he sustained an injury to his right leg while realigning his boat on a trailer. He has suffered knee pain since that injury and has been unable to return to his former employment due to continuing difficulties with his right knee. Judge Beattie found there was no causative link between the appellant's ongoing symptoms and the injury he sustained in the said accident of 5 March 1995 and that the Corporation was correct to rule that he was no longer entitled to cover for that injury. He found that the Corporation's decision to cease cover was correct and the appeal was dismissed. The appeal decision of Judge Beattie, essentially, confirmed the earlier decision of the review officer. Judge Beattie's decision involved, inter alia, a consideration of the egg-shell skull principle and its application to the present facts in view of the provisions of s.10 of the Act. On that issue Judge Beattie made some thoughtful and interesting comments, e.g. at page 13: "The provisions of section 10 make it clear that personal injury caused wholly or substantially by the ageing process is not covered by the Act. If medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of the accident which rendered symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature. In the present case the degenerative condition being largely arthritic, has flared up and is now the disabling feature That arthritic condition was not caused by the accident, it was brought to light by the accident and its effect may well have been exacerbated by the accident but there is no causal link as the condition was that of a degenerative change." 3 The submissions regarding this application Counsel for the appellant notes that the determination of this case centres on a consideration of the egg-shell skull principle and its application both in general and to the facts of this case in terms of s.10 of the Act. The basic argument on behalf of the appellant is that notwithstanding s.10, the egg-shell skull principle is still relevant and applicable to the question of cover and should be applied in this case. The appellant relies on the application of the egg-shell skull principle to establish that there is in law a causal connection between the accident of 5 March 1995 and the appellant's current disability and submits that it is the existence of that causal connection which entitles the appellant to cover. Counsel for the appellant submits that the application of the egg-shell skull principle to claims under the Act is a significant question of law and accordingly a matter in respect of which leave to appeal to the High Court should be granted. He advises that the proposed grounds of appeal would be as follows: " a. His Honour Judge Beattie erred in finding that the effect of section 10 of the Accident Rehabilitation and Compensation Insurance Act 1992 is to prevent cover being extended to those cases where pre-existing asymptomatic degenerative change becomes symptomatic as a consequence of an accident. b. That His Honour Judge Beattie erred in his interpretation of the appellant's argument concerning the application of the egg-shell skull principle to the present facts. C. That His Honour Judge Beattie erred in finding that the egg-shell skull principle is not applicable in the present case. d. That His Honour Judge Beattie erred in finding that there is no causal link between the appellant's ongoing symptoms and the injury he sustained in the accident of 5 March 1995." The respondent opposes the said application for leave to appeal and points out that the appellant is now seeking to challenge the Corporation's decision of 26 June 1997 for a third time and that the essential issue is simply one of causation, rather than a significant question of law, and is decided by expert medical evidence. It is submitted for the respondent that the High Court would be asked to revisit the key factual question, whether the appellant's ongoing incapacity is the result of his accident, when Judge Beattie made a finding of fact that the effects of the appellant's accident have ceased to operate and that degeneration is now the whole or substantial cause of the appellant's incapacity. It is also submitted for the respondent that the High Court would be asked to revisit the application of the facts, as found by Judge Beattie, to the egg-shell skull principle and that is a question of fact and as such is not a ground for which leave to appeal should be granted. Counsel for the respondent refers to the proposal that the High Court be asked to overturn Judge 4 Beattie's finding that there is no causal link between the appellant's ongoing symptoms and his accident, and submits that is an issue of fact. Counsel for the appellant filed rather detailed submissions in response. The law relevant to this application There is no dispute that leave to appeal from a decision of the District Court under the Act will only be granted if s.97(1) of the Act is satisfied. It provides: "97. Appeal to the High Court - (1) Where any party is dissatisfied with any decision of a District Court under this Act as being erroneous in point of law, that party may, with leave of that District Court, appeal to the High Court: Provided that, if the District Court refuses to grant leave to appeal to the High Court, the High Court may grant special leave to appeal." There is much case law defining the circumstances in which leave to appeal should be granted and an example is Engel v Accident Compensation Corporation [1981] NZACR 193 where Davison CJ noted: " In considering this matter the Court is not concerned to inquire whether or not the decision of the Appeal Authority was correct on the facts, but simply to see whether there arises out of that question any question of law which could form the basis for this Court granting leave for further appeal." The issue of what amounts to a question of law was examined in some detail by Fisher J in Auckland City Council v Wotherspoon [1990] 1 NZLR 78. There was particular reference to the statement of Fisher J at page 85 reading: "Whether there is the right to an appeal on a question of law is simple enough where the facts are not challenged on appeal and the argument is limited to the legal consequences of those facts in the conventional sense. The intelligent layman might reasonably expect that the matter would end there. In fact, under the label 'question of law' the Courts have allowed a limited incursion into the factual area - but only in two special situations. One concerns the question whether a positive factual finding made by the Court below was unsupported by any evidence. The other concerns the question whether any inference other than that contended for by the appellant could reasonably have been drawn from those primary facts actually found by the Court below." Ruling It seems to me that questions of general or public importance arise from Judge Beattie's most interesting decision. Is the effect of s.10 of the Act to prevent cover being extended to those cases where pre-existing asymptomatic degenerative change becomes symptomatic as a consequence of an accident? Also, there is the application of the egg-shell skull principle to the present facts - even though the egg-shell skull principle has been well canvassed in case law; and whether there is no causal link 5 between the appellant's ongoing symptoms and the injury he sustained in the accident on 5 March 1995 - which can be regarded as a question of law in terms of the inference which should reasonably be drawn from the primary facts. All in all, I consider that His Honour Judge Beattie's decision does raise questions of law which, in all the circumstances, ought to be the subject of a decision from the High Court. Accordingly, leave to appeal to the High Court is hereby granted. DATED at WELLINGTON this <3 /D day of MARCH 1999 P F Barber District Court Judge Deal3398.doc(rd)