Dooms v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No: 203/2007 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER of an application for leave to appeal to the High Court pursuant to s 162 of the Act BETWEEN JOHN DOOMS Appellant (AI 519/02) AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The appellant, through his advocate, has sought leave to appeal to the High Court from the judgment of His Honour Judge J Cadenhead, delivered on 2 April 2004, under decision No 86/04. [2] The issue before His Honour was the respondent's decision of 25 March 2002, declining the applicant's claim for cover. The grounds for the declinatione the lateness of the claim, the dearth of medical evidence and the lateness, causing prejudice to the Corporation and its ability to make a decision. [3] The applicant had claimed cover for a back injury, allegedly suffered in March 1994, whilst playing rugby league. [4] At the hearing of the appeal, His Honour considered the medical evidence that had been presented and noted the lack of contemporaneous medical evidence. In his decision, he determined that the lack of contemporaneous medical evidence, along with the inability of the Corporation to investigate the claim, had prejudiced the Corporation. [5] His Honour further stated that, on the medical evidence before him, the appellant could not show that the alleged incident of 1994 had substantially contributed to his present symptoms and he therefore dismissed the appeal. [6] I have considered the submissions presented by Mr M Darke, advocate for the appellant, who submitted that His Honour had misconstrued the provisions of s 61(2) of the Act, in relation to the onus to establish prejudice where a claim has been lodged late; in the case of this appellant the claim being lodged some seven years late. [7] Whilst the construction of a statutory provision, when called into question, is undoubtedly a question of law, on the facts of the present case I find that His Honour had not misconstrued the law and simply based his decision on the facts, he having found that the respondent had identified that it had been prejudiced by the delay in lodging the claim. [8] It is the case also that His Honour went on to consider the substantive issue, in any event, and determined, on the evidence, that the appellant's claim could not be sustained. [9] In those circumstances, I find that there is no question of law which ought to be referred to the High Court for determination, such as is required by s 162 of the Act, and, accordingly, this application for leave to appeal is refused. Dated this 4th day of September 2007 M J Beattie District Court Judge