Eketone v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HUNTLY WELLINGTON REGISTRY Decision No. 069/2004 Appeal No. AI 39/00 UNDER The Accident Insurance Act 1998 IN THE MATTER of an appeal pursuant to section 165 of the Act BETWEEN RERERANGI IRENE EKETONE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent SUBSTANTIVE DECISION ISSUED: 4 December 2000 DATE OF THIS DECISION: 22 March 2004 HEARD on the papers DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL [1] In a reserved judgment of 4 December 2000, Judge Beattie dealt with the issue whether the appellant could satisfy the test contained in s.7(1)(c) of the 1992 Act in respect of her right arm epicondylitis, said to have been sustained by the appellant in the course of her employment as a meat inspector. His Honour found that the evidence is wholly against such a finding and that the claim for cover did not succeed, and the appeal was dismissed. [2] By letter of 18 December 2000, solicitors then acting for the appellant advised that she sought leave to appeal that judgment of Judge Beattie. In a later letter of 22 January 2001 those solicitors advised as follows: “The appeal concerns section 7(1)(c) ACC Act 1992. At the Court hearing statistical evidence was presented on behalf of ACC to show that Ms. Eketone’s case did not fall within the generic spectrum of 7(1)(c) cases. In order for Ms. Eketone’s appeal to be successful we now require to discover that the math reliance on the statistical evidence produced was incorrect. We have done some research in this matter and we are instructed by our client to seek an extension of time to file submissions. 2 Accordingly we seek an extension of time until February 28th 2001 for the filing of submissions.” [3] That extension of time was granted. [4] After efforts by this Registry, it was advised on 17 April 2001 that the appellant had changed solicitors, and eventually there was a 1 June 2001 response obtained from them seeking a further extension of time for a further month or until such time as legal aid is approved for the appellant. An extension of time was granted until 11 July 2001. A further extension of time for another month was applied for by those solicitors on 9 July 2001 and granted. A similar application was made on 10 August 2001 and granted. However, by letter of 10 December 2001 those solicitors advised that they had no further instructions from Mrs Eketone to pursue the appeal, and that the Registry should deal with her. Since then, the Registry has communicated frequently with the appellant who, in a number of communications to the Registry, has kept procrastinating in this matter, although maintaining that she intended to pursue it. Further extensions for the appellant to file submissions were granted up to 19 July 2002. On that day the Registry received a letter reading: “Re: Appeal to High Court Rererangi Eketone v Accident Corporation Commission. Grounds for appeal all facts not taken into account or produced. Also that ACC acted improperly in using Dr Turner, and that Dr Turner has acted contrary to the rules of natural justice. No evidence put to the District Judge in regards to section 7(1)(c) from either party. Acting Solicitor at the time did not listen to instructions. I look forward to your prompt reply.” [5] Since then I have received submissions in the usual way from counsel for the respondent. Although the Registry has received further correspondence from the appellant that does not advance matters in any constructive way and seems aimed at proceedings against a former lawyer of the appellant for alleged negligence towards her, and indicates that no more Legal Aid is available to her. [6] There was a further letter dated 17 September 2002 from the appellant to the Registry seeking an extension of time to file submissions. A “final extension” was granted by the Deputy Registrar until 19 February 2003, on which date a letter was received from the appellant seeking a further extension, and the Deputy Registrar granted a “further and final extension of 21 days”. There is a further letter from the appellant dated 8 September 2003 seeking a further extension of three months, and yet another extension was given for 21 days from 29 September 2003. There has been no response from the appellant since then. A Summary of the Submissions in Opposition to Application for Leave to Appeal [7] The respondent opposes the application for leave to appeal and notes that, under s.165 of the Act, a party to an appeal who is dissatisfied with the decision of 3 the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. Ms S Scott submits for the respondent that the appellant has not identified any question of law requiring determination by the High Court, and she continues as follows: “3. The first submission made by the Applicant in support of her application is that not all facts were taken into account or produced. The Applicant does not specify which facts were not taken into account by His Honour Judge Beattie, and the Respondent submits that a reading of the decision shows that His Honour detailed the evidence that was put before him and made his ruling based on his interpretation of that evidence. It is submitted that it is open to the Court to consider what weight to place on each piece of evidence, and in the circumstances there is nothing to suggest that Judge Beattie disregarded any major piece of evidence in reaching his decision. It is submitted that the first ground raised by the Applicant does not raise a question of law. 4. The second submission made by the Applicant is that ACC acted improperly in using Dr Turner, and that Dr Turner has acted contrary to the rules of natural justice. The Respondent assumes that this submission is based on the fact that Dr Turner had been approached by the Applicant’s counsel in 1997 and had provided a report supporting her claim. However he subsequently conducted an extensive study into occupational overuse injuries in meat inspectors, and as a result changed his view on the cause of the Applicant’s condition. The Respondent submits that there is no property in a witness, and it was not improper for the Court to take into account Dr Turner’s subsequent opinion which did not support the Applicant’s claim. There is no question of natural justice as the Applicant had the opportunity to comment on that evidence, or to provide her own evidence in response. The Respondent submits therefore that the second submission made by the Applicant does not raise a question of law. 5 The third submission made by the Applicant is that there was no evidence put to the District Court Judge in regards section 7(1)(c) from either party. The Respondent submits that this submission cannot be supported on a reading of the District Court decision. The Court had a number of sources of evidence before it relating to the section 7(1)(c) issues, including Dr Turner’s 1997 report into the risks of occupational overuse type injuries by meat inspectors, a report from Dr J Monigatti, Occupational Assessor, which specifically referred to NIOSH studies into the incidence of injury amongst meatworkers, and the employer’s anecdotal evidence as to the number of claims it had received per year. 6 The final submission made by the Applicant is that the solicitor acting for her at the time of the appeal did not listen to her instructions. With respect, this does not raise a question of law in relation to the appeal, and is not a ground for appealing the decision to the High Court.” 4 Reasons for Ruling [8] I agree with the submissions set out above from Ms Scott for the respondent, and I find that the appellant has not raised any questions of law arising from the said decision of Judge Beattie which require consideration by the High Court. In any case, the appellant has declined to make formal submissions and has merely sketched the grounds upon which an appeal would be based. In the circumstances I have outlined above of non co-operation from the appellant, despite the latitude of the Deputy Registrar in granting numerous extensions for her to file formal submissions, it seems sufficient that I simply strike out this application for leave to appeal on the grounds of non-prosecution. In any case, in terms of the material put before me, the appellant’s application for leave to appeal does not raise any question of law for consideration by the High Court. [9] Accordingly, the application for leave to appeal is hereby declined. _____________________________ Judge P F Barber District Court Judge Wellington ai39-00.doc(aw)