Executors of the Estate of Fletcher v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 297 12001 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal to the High Court pursuant to section 91 of the Act BETWEEN THE EXECUTORS OF THE ESTATE OF SHANE MICHAEL FLETCHER Appellant (Appeal No. DCA 146/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION First Respondent AND FUELQUIP SERVICES LIMITED Second Respondent DATE OF JUDGMENT 24 October 2001 JUDGMENT OF JUDGE A A P WILLY ON APPLICATION FOR LEAVE TO APPEAL [1] This is an application for leave to appeal against a decision of Judge Beattie given on 27 February 2001. [2] His Honour was concerned with claims to cover based on a "gradual process argument". That is a question of fact dependent on the view the Court takes of the medical evidence. His Honour carefully reviewed the relevant medical opinion and the facts upon which it is based, and decided in favour of the claimant. [3] The Corporation abides the decision of the Court, and opposes this application for leave. 2 [4] The second respondent raises three grounds for appeal: 1. That the Judge failed to determine Fuelquip's objection to the admission of Dr Ravnskov's report. 2. That the Judge erred in law in saying that s.7(1)(b) and (c) of the Accident Compensation and Rehabilitation Insurance Act 1992 were indisputably 'satisfied in this case" 3. The Judge erred in law in failing to determine whether the applicant met the requirements of s.7(c). [5] Grounds 2 and 3 are aspects of the same proposition that the Judge failed to properly consider s.7(b) and (c) either by wrongly assuming there to be agreement between the parties that they were "satisfied", or alternatively failing to consider s.7(1) (c) at all. [6] It is well established that before leave can be granted there must not only be a "point of law" arising from the judgment, but it must be one which is capable of bona fide and serious argument Impact Manufacturing Limited v Accident Rehabilitation and Compensation Insurance Corporation and Anor High Court Wellington AP 266/00 6 July 2001 Doogue J. Following Gendall J in P & O Services (NZ) Limited v Accident Rehabilitation and Compensation Insurance Corporation High Court Wellington AP 43/98 judgment 30 July 1998. 7] It can be difficult to decide what is a question of law, but it is now well settled that "whether the facts are such as to bring the case within the provision, properly construed of some statutory enactment the question is one of law only". See Farmer v Cotton's Trustees (1915) AC 922 at 923, and Ransome v Higgs [1974] 3 All ER 949 (HC). [8] It remains uncertain if the question of whether there was evidence to support a particular finding of fact is a question of law Gold and Resource Developments (NZ) Ltd v Doug Hood Lid [2000] 3 NZLR 318, of Edwards (Inspector of Taxes) v Bairstow [1956] AC 14, where Viscount Simonds held that "findings of fact made by a Tribunal could be set aside by a Court if it appeared that the Tribunal had acted without any evidence or on a view of the facts that could not be reasonably entertained." [9] Guided by those considerations I am satisfied that no question of law arises in relation to the second and third grounds of appeal. It is in my view clear from His Honour's judgment when read as a whole, that he did, in fact, consider whether or not the requirements of s.7(b) and (c) had been met. As Doogue J said in Manufacturing Limited v ARCIC above, "The Judge in his findings implicitly and effectively answered the first two of the steps identified in Knox and the conclusion that he is expressing amended the third step identified in Knox." [10] Suffice to say, I agree with the submissions of Mr Sherriff at paragraphs 16 to 18 of his submissions of 23 July 2001. Whether or not His Honour expressly referred to the subsections is not the point. What is important is that he made the necessary findings of fact which satisfy the relevant statutory provisions. 3 The Intended Appellant's Objection to Admission of Dr Ravnskov's Report [11] This raises different considerations. It is clear that His Honour was significantly influenced by the Doctor's report (see paragraph 30 of the judgment). Indeed, he preferred the reasoning of this witness to that of the two Doctors with opposing views . [12] Counsel for the intended respondents contend that: 1. The Judge was not obliged to deal with or comment on every submission put to him, and that is as a general proposition plainly correct 2. That His Honour was entitled to hear "such evidence as it thinks fit whether or not the evidence would be otherwise admissible in a Court of law" (s.92(2)). [13] That also is correct, but in exercising that discretion it must be clear that the Court has turned its mind to any objection. In doing so the usual rules about the exercise of a discretion apply. It must be shown that the Court took into account all relevant considerations, did not rely on irrelevant matters, and that the exercise of the discretion does not produce a result which is wrong. [14] In his pre-prepared written submissions, counsel for the intended appellant raised an objection to the admission of Dr Ravnskov's report (see paragraphs 1-6). On the face of it the matters raised have substance and required an answer; particularly given the importance of the Doctor's report. It is clear, however, from His Honour's memorandum that the objection was not pursued at the hearing. Instead the intended appellant had a full opportunity to obtain rebuttal medical evidence, and did so. His Honour was left to weigh the competing medical reports and in doing so preferred the evidence of Dr Ravnskov. [15] Mr Milliken, counsel for the claimant, submits that it is clear from the judgment that His Honour "gave both parties a fair hearing and ... that there was no error of law in refusing to admit Dr Ravnskov's report on the basis of prejudice to the second respondent." I agree. Decision [16] In those circumstances, any suggestion that His Honour failed to deal to the admission of Dr Ravnskov's report is untenable. Leave to appeal is therefore declined. A A P Willy District Court Judge dca 146-98.doc(aw)