Johnston v Accident Compensation Corporation HC Wellington CIV 2010-485-424

[2011] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-424

IN THE MATTER OF     an appeal under s 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001

BETWEEN  PETER JOHNSTON Applicant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         11 April 2011

Counsel:         A Beck for Applicant

B A Corkill QC for Respondent

Judgment:      12 April 2011

JUDGMENT OF SIMON FRANCE J

[1]      This is an application to appeal my decision of 23 September 2010.   The factual context is that Mr Johnston had a fall.  Since then he has suffered back pain, and is unable to work.   Coverage was initially given.   However, when incapacity continued, the matter was re-assessed.  The Corporation determined that the source of the on-going incapacity was no longer an injury stemming from the fall, but pre- existing degeneration of Mr Johnston’s spine.  It is accepted the degeneration might

not have ever been an issue for Mr Johnston but for the fall.

PETER JOHNSTON V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2010-485-424 12 April

2011

[2]      The District Court upheld the Corporation’s decision I, in turn, upheld the decision of the District Court.   In doing so, I rejected a challenge to longstanding authority in the area, namely McDonald v ARCIC.[1]   Mr Beck wishes to pursue that challenge in the Court of Appeal. The proposed questions of law would be:

[1] McDonald v ARCIC [2002] NZAR 970.

(a)      Is  a  person  entitled  to  cover  under  the Act  if  an  accident  injury triggers the onset of symptoms that would otherwise not have manifested themselves?

(b)      Did  the  Court  adopt  the  wrong  test  to  determine  whether  the

appellant’s on-going pain was a personal injury caused by accident?

[3]      The first question, as posed, may be misunderstood.  If the accident causes a fresh injury, as opposed to aggravating an existing condition, then the victim is entitled to coverage.  This is not, however, what the applicant really wishes to argue. The true scope of the applicant’s argument is seen if one removes the word injury from the question.   Both questions seek to argue that a “but for” link between accident and incapacity is enough.

[4]      This proposition was rejected in McDonald which has been applied now for nearly ten years.  Mr Beck’s argument still seems to me to ignore the wording of the Act, and in particular s 26.  Leave was reluctantly given by the District Court for the appeal to the High Court.  The reluctance was because the very experienced District Court Judge doubted the point was arguable.  I do not disagree with his decision to grant leave, but do not consider I should now do likewise.  McDonald is settled law, and at least, in my view, is correct.  In such circumstances it should be for the Court of Appeal to give leave if it considers the matter merits exploration.

[5]      The other point the applicant seeks to advance is that the decision was not available on the evidence.  As I acknowledged in my judgment, there were unusual features to the evidence which gave strength to Mr Johnston’s case.  However, the

District Court held the evidence overall supported the Corporation’s assessment.  On

an a question of law appeal, I ruled that conclusion was open to the District Court.  It is not a topic suitable for further appeal.

[6]      The application for leave to appeal is declined.  The parties have agreed that costs should lie where they fall.

Simon France J

Solicitors:

A Beck, Barrister, PO Box 5601, Wellington, email:  [email protected]

B A Corkill QC, Wellington, email:  [email protected]