Matthews v Accident Compensation Corporation

[2019] NZHC 3125

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-404-1087

[2019] NZHC 3125

IN THE MATTER OF

An appeal under s 162 of the Accident Compensation Act 2001

BETWEEN

MAYBELLE KAPETA MATTHEWS

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

4 September 2019 (further submissions 20 September 2019)

Appearances:

A Beck for Appellant

A Butler for Respondent

Judgment:

28 November 2019

JUDGMENT OF GRICE J

(Leave to appeal)

[1]    On 15 February 2017 the District Court upheld an Accident Compensation Corporation (ACC) reviewer’s decision which dismissed Mr Aria’s claim for weekly compensation under the ACC regime.1 On 1 July 2019 this Court dismissed an appeal against the District Court decision.2

[2]    Unfortunately, Mr Aria died  in  2016  in  an  unrelated  boating  accident.  Ms Matthews, as his representative,3 appealed the District Court decision. She now

1      Aria v Accident Compensation Corporation [2017] NZACC 38 (DC).

2      Matthews v Accident Compensation Corporation [2019] NZHC 1509.

3      Ms Matthews was given leave to be substituted as the appellant in these proceedings: Matthews v Accident Compensation Corporation [2018] NZHC 2769 at [2].

MATTHEWS v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 3125 [28 November 2019]

seeks leave to appeal from the decision of this Court to the Court of Appeal. I refer throughout to Mr Aria as the claimant and appellant to avoid confusion.

Background

[3]The background was set out in the High Court decision as follows:4

[3]        In 1974, Mr Aria was involved in a motorcycle accident that caused serious soft tissue and vascular injuries to his right leg. In particular, the internal damage compromised a deep artery known as the popliteal artery in the vicinity of the knee. This affected the blood circulation in the lower leg. He required several surgeries to help correct some of this internal damage.

[4]        The first surgery involved an arterial bypass and a skin graft. The healing process was not straight forward and Mr Aria suffered a haematoma and infection. He also underwent a subsequent surgery in which an attempt was made to stretch his Achilles’ tendon. This surgery was necessary as the tendon had shortened causing his ankle and foot to fix in a pointed position (plantar flexion). Following both surgeries Mr Aria was unable to fully extend his right knee (fixed flexion deformity) and his right ankle remained in its fixed position (it was held in an equinus). He spent three to four months in hospital.

[5]        Mr Aria had to manage around his deformity. He had to walk on the tip of his toes on his right foot. Mr Aria was about 17 years of age at the time of the injury and not employed.

[6]        In 1975, Mr Aria gained employment at a meat processing plant. Despite his limp, he worked full time for most of the period until 2008. He trained as a meat boner.

[7]        He was employed as a boner in a meat processing works when in April 2007 an insect bite led to ulceration of his right leg that would not heal. It was found that the popliteal artery was almost totally occluded with little collateral circulation. A further bypass was required.

[8]        The first surgery was attempted in June or July 2008 by Dr Caldwell, a vascular surgeon. It failed due to extensive scaring and fibrosis of the artery. The existing ulcers would not heal and new ulcers appeared on Mr Aria’s ankle (medial malleolus).5 He warned Mr Aria that if his next attempt at restoring some circulation was unsuccessful the lower leg might need amputation. In September 2008, Dr Caldwell’s further attempt to bypass the damaged popliteal artery was successful.6 The ulcers ultimately healed, but the deformity causing an inability to flex Mr Aria’s knee became worse and the skin was rendered more delicate.

[8] Mr Aria has not worked since 2008.

4      Matthews v Accident Compensation Corporation, above n 2.

5      The bony bump on the inside of the ankle joint.

6      The surgery was described as a graft being “a right superficial femoral to anterior tibial by pass using the left lower limb long saphenous vein as a donor vessel”.

[4]    Mr Aria sought weekly compensation from ACC based on the 1974 injury in June/July of 2008. Weekly compensation was paid by ACC. In September 2009 ACC discovered it had made those payments in error as Mr Aria had not been employed in 1974 when he had suffered the injuries to his leg. The payments were therefore stopped in December 2009. Mr Aria was not required to pay anything back to ACC.

[5]    Mr Aria asked ACC to review its decision to stop paying weekly compensation. A reviewer dismissed that application in April 2010 and an appeal was lodged against the reviewer’s decision. However, before that appeal was heard by the District Court, ACC began another investigation into  whether  the  personal  injury  that  caused  Mr Aria’s present ongoing incapacity was the 2007 injury rather than the 1974 injury. As Mr Aria was employed in 2007 he would have been entitled to weekly compensation if the injury was suffered at that stage.

The District Court appeal and special leave

[6]    ACC concluded in November 2015 that Mr Aria should be paid compensation for ongoing incapacity from the 2007 injury only up to December 2009. That was when the weekly compensation payments had stopped. ACC found that the 2007 injury had fully healed by December 2009 and any ongoing incapacity was caused by the earlier 1974 injury.

[7]    Mr Aria sought a review of that decision. The reviewer dismissed Mr Aria’s application in February 2016. Mr Aria appealed the reviewer’s decision to the District Court. On 11 April 2017 the District Court dismissed Mr Aria’s appeal against the reviewer’s decision.7 The Judge concluded that the 2007 injury had healed by the end of 2009 and any ongoing incapacity suffered by Mr Aria was due to the 1974 injury.

[8]    Mr Aria sought leave to appeal from the District Court decision. The District Court refused him leave on 17 May 2018.8 He applied to the High Court for special leave to appeal, which was granted on 25 October 2018.9

7      Aria v Accident Compensation Corporation, above n 1.

8      Aria v Accident Compensation Corporation [2018] NZACC 73 (DC).

9      Matthews v Accident Compensation Corporation, above n 3.

[9]    An appeal against a District Court decision under the Accident Compensation Act 2001 is confined to questions of law.10 The two questions of law on which Mr Aria was granted leave to appeal were:11

(1)Can a further physical injury that aggravated a pre-existing physical injury be a cause of incapacity under cl 32 of Schedule 1 and s 103 of the Act?

(2)If so, was Mr Aria’s inability to return to work caused by the aggravation of his pre-existing knee flexion and/or ankle equinus (as opposed to the original injuries themselves)?

The High Court decision

[10]   The matters of law for consideration by this Court are outlined above. Nevertheless, Mr Beck also raised two further grounds in his submissions at the hearing. These were:

(a)Whether the fragility of the skin which had been compromised by ulceration in 2007 was a material contributing factor to Mr Aria’s ongoing incapacity beyond December 2009.12

(b)Whether the District Court Judge applied the correct burden of proof when she found the 1974, and not the 2007, injury was the cause the ongoing incapacity.

[11]   The latter ground concerning the burden of proof had also been put forward as a ground of appeal by Mr Beck in the leave application in 2018 but leave was not granted to appeal on that issue.

[12]   The conclusion of this Court on appeal was that issues relating to whether the aggravation of a pre-existing injury can be a new personal injury for the purposes of s 103 and cl 32 of sch 1 of the Act  did  not  arise in  this case.  That  was because  Mr Aria’s incapacity was due solely to the 1974, and not the 2007, injury. The ulcers were a symptom of the underlying circulatory problems created by the 1974 injury.

10     Accident Compensation Act 2001, s 162.

11     Matthews v Accident Compensation Corporation, above n 3, at [14].

12     My references to the “fragility of the skin” refers to the skin on the compromised lower leg.

The 2008 surgery was triggered by damage caused by the 1974 injury. Once Mr Aria had had surgery to correct the underlying circulatory issue  the ulcers healed  and  Mr Aria was left with the after effects of the 1974 injury. This Court’s findings upheld the decision of the District Court which had found Mr Aria’s incapacity was due to the 1974 and not 2007 injury.

[13]   This Court also dealt with the issue, raised for the first time on appeal, that the fragility of the skin following the ulcers caused the incapacity. I concluded there was limited evidence for this argument and the information available did not assist Mr Aria. This raised an issue for which leave had not been granted to appeal. It was addressed by the Court only to consider if there was a factual basis for it. There was not and the issue was dismissed.

[14]   This Court finally noted that although the Judge did not make express reference to the burden of proof, she assessed the medical evidence as a whole in reaching her conclusions. Again, leave was not granted to extend the issues on appeal and it was considered only to see if there was a basis for it. There was not. This Court concluded that on the evidence before the District Court it was able to be satisfied that the 2007 injury was no longer operative.

Leave to appeal

[15]   Leave to appeal to the Court of Appeal under s 163 of the Act is confined to questions of law.13 A decision may raise a question of law if it:14

(a)misinterprets, and so misdirects itself on, the law;

(b)overlooks any relevant matter to the proper application of the law;

(c)takes account of any matter which is irrelevant to the proper application of the law; or

13     Accident Compensation Act, s 163.

14     Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52]; and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]–[27].

(d)reaches an ultimate conclusion on the facts which is clearly untenable because the proper application of the law requires a different answer.

[16]The principles applicable to a leave application are also well established:15

(a)there must be a serious question of law capable of bona fide and serious argument;

(b)the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal;

(c)the primary focus is on whether the question of law is worthy of consideration; and

(d)other relevant considerations, such as the desirability of finality of litigation and the overall interests of justice.

[17]   It is not in the interests of justice to hear a proposed appeal concerning a question of law which is not likely to be material to the outcome of the proceedings.16 It is not sufficient for the intended appellant to point simply to a possible question of law – they must identify an issue that is capable of bona fide or serious argument and that assumes sufficient importance to justify a further appeal.

[18]   The required degree of importance can relate to a number of factors. These include whether the question of law could be a matter of widespread application to a large number of cases or it could be a matter of profound significance to the intended appellant or a small number of similarly placed claimants.

[19]   Ultimately the interests of justice should be sufficiently compelling so as to require that leave be granted so that the intended appellant will be entitled to what is, effectively, a fourth hearing in relation to matters in issue.

15     Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

16     Loktronic Industries Ltd v Diver [2012] NZSC 77 at [2]–[3]; and Loktronic Industries Ltd v Diver

[2012] NZSC 60 at [5].

Suggested grounds of appeal

[20]   Mr Beck, for Mr Aria, raised a number of grounds said to raise errors of law. I summarise those grounds as follows:

(a)The High Court erred by concluding there was no error of law in the District Court decision as the District Court failed to apply the correct test of causation;

(b)The High Court made new factual findings beyond those made by the District Court and, in this way, extended beyond its jurisdiction;

(c)The High Court should have referred the decision back to the District Court based on these new factual findings;

(d)The High Court erred in its assessment of the evidence;

(e)The High Court failed to apply the correct causation test; and

(f)The High Court erred in its assessment of the onus of proof in the District Court.

[21]I will assess these points in order.

Analysis

Incorrect test of causation applied by the District Court

[22]Mr Beck articulated this ground as follows in his notice of appeal:

(a)The High Court erred in law by concluding that there was no error of law in the District Court decision.

(b)The question that arose in this case is whether the appellant’s injury in 2007 was a material factor contributing to his incapacity. The District Court failed to apply the correct test of causation in accordance with the authorities.

(c)The role of the High was to determine whether there was an error of law in the District Court decision. Instead of undertaking this task, the

Court embarked on a fresh analysis of the facts, and reached factual conclusions that differed from the findings of the District Court. In so doing, the Court acted outside of its jurisdiction.

(d)Once it became clear that the District Court had applied an incorrect test for causation, the proper course was to refer the matter back to the District Court.

[23]   Mr Beck argues this Court failed to refer to whether the District Court applied the correct legal tests related to causation or ask whether there was more than one contributing factor to Mr Aria’s incapacity.

[24]   The District Court Judge noted the reviewer’s conclusion on cause of the ongoing incapacity as follows:17

... It follows I find there is insufficient medical evidence to show that Mr Aria’s incapacity from 28 December 2009 to the present day is causally related to his covered April 2007 injury. I find the medical evidence as a whole clearly links Mr Aria’s incapacity to his 1974 injury. On this basis his application cannot succeed.

[25]   The conclusion of the District Court, having reviewed the medical reports, was as follows:

[37]      The issue before me is whether the 2007 covered injury was the cause of Mr Aria’s incapacity to return to work after 2009, or whether his incapacity arose from the deformity of his ankle and hence caused by the 1974 accident.

[38]      In my view the Reviewer was correct in her decision. For my part Dr Wall’s opinion, when considering the overall position and commenting upon Mr Caldwell’s advice, is to be preferred in concluding that the 1974 injury was causing the continuing incapacity. There is little difference between Dr Wall and Mr Caldwell other than Mr Caldwell’s reference to “the combined effect of injuries in 1974 and 2007”.

[39]      Whether or not there was a combined effect, that in my view ceased to apply from 2009 when the abrasion injury and ulcer were successfully treated. What the late Mr Aria was unfortunately left with was the result of the 1974 injury.

[26]   The Judge agreed with the reviewer on the evidence. The District Court Judge may not have articulated the legal test for causation, but she was not required to as she had concluded there was only one cause for Mr Aria’s ongoing incapacity. The Judge may have been concise in her finding, but when read in the context of the whole

17     Aria v Accident Compensation Corporation, above n 1, at [15].

decision that is not problematic as her conclusion is supported on the evidence. The absence of a detailed analysis of causation is not necessary in those circumstances.18

[27]   The High Court was required to consider the evidence which was before the District Court in order to assess if the Judge was correct in her determination as to cause. I said:19

[32]      In short, the 2008 arterial surgery was only required because of the circulation problems which were entirely due to the 1974 personal injury. The restoration of the circulation to the leg separately allowed the healing of the ulcers. There was no suggestion anything went wrong during that surgery. The 2008 arterial bypass surgery was solely to increase circulation compromised by the 1974 personal injury and treatment. The requirement for surgery may have been accelerated by the ulcers, but this was only because they precipitated the investigation into the circulation. Otherwise, the surgery had no link to the 2007 personal injury.

[33]      Once the ulcers had healed the only knee/ankle incapacity was that caused by the 1974 personal injury. The 2008 surgery was triggered by damage caused by the 1974 injury and any aggravation flowing from the 2008 surgery was from the 1974, and not the 2007, injury.

…

[35]  In my view the Judge made no error in reaching her conclusion that   the incapacity from Mr Aria’s knee and ankle problems were due to the 1974 personal injury. Once the ulcers had healed there was no other contribution to the incapacity.

[28]   In order for causation to be an issue in the way argued by Mr Beck, the District Court must have erred in its assessment that the 1974 injury alone, and not the 2007 injury, was the cause of Mr Aria’s incapacity. I found the District Court did not err in its assessment.

[29]   This was a factual finding on which the District Court made no error, no issue of law arises.

New factual findings on appeal

[30]Mr Beck framed this argument in his notice of appeal as follows:

18 Wildbore v Accident Compensation Corporation [2009] NZCA 34, [2009] 3 NZLR 21 at [34] approved a similar concise conclusion where the evidence had been traversed in length in the decision.

19 Matthews v Accident Compensation Corporation, above n 2.

(c)The role of the High was to determine whether there was an error of law in the District Court decision. Instead of undertaking this task, the Court embarked on a fresh analysis of the facts, and reached factual conclusions that differed from the findings of the District Court. In so doing, the Court acted outside of its jurisdiction.

…

(e) The High Court erred in law by embarking on a new analysis of the  facts, and in making new factual findings. The High Court stated that Mr Aria’s incapacity was caused by the surgery in 2008 (para 33). Such a finding would necessitate a new inquiry as to whether the injury was covered under s 20(2) of the Act.

[31]   Essentially, Mr Beck argues that this Court found the incapacity was caused by the circulatory surgery in 2008 rather than either the 1974 injury or the 2007 injury. He says because under s 162 of the Act this Court only has jurisdiction to consider questions of law, the factual findings he suggests were made by this Court were unlawful.

[32]The questions of law that this Court gave leave to consider were as follows:20

(1)Can a further physical injury that aggravated a pre-existing physical injury be a cause of incapacity under cl 32 of Schedule 1 and s 103 of the Act?

(2)If so, was Mr Aria’s inability to return to work caused by the aggravation of his pre-existing knee flexion and/or ankle equinus (as opposed to the original injuries themselves)?

[33]   However, in order for the first question to arise this Court must first conclude that the District Court was in error in finding that in fact Mr Aria’s ongoing incapacity was not caused or contributed to by the 2007 injury. This Court concluded the District Court Judge was correct in in finding the 1974 injury was the sole cause of the ongoing incapacity. This Court’s factual conclusions meant question one never arose and so was moot.

[34]This Court’s conclusion was as follows:21

[53]     In my view the Judge made no error in reaching her conclusion that the incapacity from Mr Aria’s knee and ankle problems were due to the 1974

20     Matthews v Accident Compensation Corporation, above n 3, at [14].

21     Matthews v Accident Compensation Corporation, above n 2.

personal injury. Once the ulcers had healed there was no other contribution to the incapacity.

[35]   In coming to that conclusion, this Court assessed the argument that the knee and ankle issues were aggravated by the 2007 injury. That was Mr Beck’s submission. It was his argument that there were multiple causes of Mr Aria’s incapacity and that the 2007 injury was one of those causes.

[36]   This Court found this was not the case as the 2007 injury was not an ongoing cause of incapacity beyond December 2009. This is the same conclusion reached by the District Court. It was Mr Beck who then argued that the District Court had erred in its assessment of the effects of the 2007 injury on the evidence. The District Court held that the 2007 injury had been successfully treated and was therefore of no consequence. Mr Beck argued this finding was in error and this Court should find  Mr Aria’s 2007 injury had ongoing consequences. He submitted:

35.        Mr Aria was assessed as permanently impaired as a result of the 2007 injury (Case p 56). The need to take great care of his leg was emphasised by both Dr McLean (Case p 58) and Dr Walls (Case p 97). There was accordingly no medical basis for the District Court’s conclusion that the 2007 injury “ceased to apply” from 2009.

36.        The proper conclusion to be drawn from the evidence is that the 2007 injury was an ongoing contributing factor to Mr Aria’s incapacity. It was not something that could be dismissed as de minimis, and was accordingly a causative factor in terms of the analysis in W v ACC.

[37]   To address this submission, this Court noted that if there had been an ongoing incapacity, as argued by Mr Beck, that occurred following the 2008 surgery which was entirely due to the underlying circulatory problems created by the 1974 injury. This Court noted:

[31]      It was common ground that the popliteal artery had been badly damaged by injury and subsequent treatment in 1974 and had occluded to compromise circulation in Mr Aria’s lower leg. Circulation was restored to some extent by Mr Caldwell’s graft repair in September 2008, following an unsuccessful attempt to achieve that in June or July 2007. Once the circulation had increased following the arterial bypass the old and new ulcers healed and no more formed.

[32]      In short, the 2008 arterial surgery was only required because of the circulation problems which were entirely due to the 1974 personal injury. The restoration of the circulation to the leg separately allowed the healing of the ulcers. There was no suggestion anything went wrong during that surgery.

The 2008 arterial bypass surgery was solely to increase circulation compromised by the 1974 personal injury and treatment. The requirement for surgery may have been accelerated by the ulcers, but this was only because they precipitated the investigation into the circulation. Otherwise, the surgery had no link to the 2007 personal injury.

[33]      Once the ulcers had healed the only knee/ankle incapacity was that caused by the 1974 personal injury. The 2008 surgery was triggered by damage caused by the 1974 injury and any aggravation flowing from the 2008 surgery was from the 1974, and not the 2007, injury.

[38]   No new factual findings were made on this basis. The High Court had to necessarily consider the evidence before the District Court in order to deal with this argument. That evidence was as follows:22

(a)Dr Caldwell conclusion in a report to ACC on 9 September 2008 that “in my opinion the ulceration and problems with his right leg are predominantly related to past  trauma”.  Dr Caldwell  then  referred Mr Aria to an orthopaedic consultant on 2 February 2009 and noted that “the knee flexion seems to be a little worse since his vascular procedure”.

(b)In May 2009 Dr Chris Walls, an occupational medical specialist, undertook an initial medical assessment of Mr Aria. In his report of he noted that the extent of the equinus in his right ankle “has increased” from before the operation. Dr Walls concluded that Mr Aria had “developed arterial insufficiency” which lead to skin ulceration. He said the arterial bypass graft had reversed that to some extent.

(c)On 15 July 2009, at a follow up clinic, Marion Gibson, a vascular nurse on the vascular unit at Middlemore Hospital, noted Mr Aria’s “main concern is regarding the fixed flexion in his right knee. I understand this is an ongoing issue … [it] became worse following his fem[oral] distal graft”.

22     Matthews v Accident Compensation Corporation, above n 2, at [28]–[30].

[39]   This analysis was carried out to consider Mr Beck’s argument that the 2008 surgery responded to the 2007 injury. However, the effect of surgery was not an issue for which leave was granted. It was dismissed.

[40]   A similar point can be made in relation to Mr Beck’s submission that the skin fragility might have resulted from the ulcers which might have been a cause of      Mr Aria’s incapacity. Both were issues raised by Mr Beck but this Court concluded there was little evidential weight to support them.

[41]   As set out above, this Court found the District Court had found on the facts that the 2007 injury was not an ongoing or contributing cause of incapacity beyond December 2009. This conclusion reached by the District Court, was reviewed by this Court on appeal and found not to be in error.

[42]No issue of law arises.

Failure to refer the decision back to the District Court

[43]Mr Beck framed this argument in his notice of appeal as follows:

(d)Once it became clear that the District Court had applied an incorrect test for causation, the proper course was to refer the matter back to the District Court.

[44]   Mr Beck submits that the High Court made new factual conclusions not previously made in the District Court, as outlined above. He says that, as pursuant to s 162 of the Act, this Court only has jurisdiction to consider questions of law, it could not make factual findings that differed to those of the District Court. In Mr Beck’s submission this Court should have referred the decision back to the District Court on the basis it had erred in its assessment of causation.

[45]   Mr Beck also says the High Court decision found the incapacity was caused by the circulatory surgery in 2008, which would engage s 20(2) (treatment injury) rather than s 103 of the Act. In his submission this Court should have referred the decision back to the District Court as its decision was made on the wrong basis.

[46]   This Court did not find that the 2008 surgery was a cause of Mr Aria’s incapacity. This was raised by Mr Beck. This Court concluded the Judge was correct in finding that once the ulcers were healed the only cause of ongoing capacity was the effect of the 1974 injury.23 No new factual findings were made on appeal and this point is also moot.

[47]   Even if this Court had made that factual finding, which it did not, it may be that the appropriate route would be for Mr Aria to file a fresh application with ACC to allow it to investigate. This was what occurred in this case in 2015.

[48]No error of law arises under this ground.

Error in reference to report

[49]Mr Beck framed this argument in his notice of appeal as follows:

(f)The Court erred by stating that the report by Dr Walls was not for the purposes of incapacity. The Court accordingly reached its conclusion on an incorrect assessment of the evidence.

[50]That error in the decision in the High Court decision is as follows:24

[34] Similarly, the fragility of the skin was apparently due to the circulatory problems flowing from the 1974 personal injury, the 1974 skin graft and healed ulcers. Mr Walls did not suggest the skin problems caused incapacity other than Mr Aria needing to take particular care of the skin on the lower leg and that was a factor to take into account for an impairment payment. It was not for the purposes of an incapacity assessment. I note the limited evidence and analysis on this point and  the  information  available  does  not  assist Mr Beck. I dismiss it.

[51]   As Mr Beck says, the report by Mr Walls was an assessment of capacity undertaken by an occupational physician not an impairment assessment. While I was incorrect in that comment, it was not a material error and the misstatement of the purpose of the report was not relevant to my conclusions.

[52]   Whether or not the report was for an impairment payment or incapacity assessment made no difference. The relevant paragraph addressed Mr Beck’s new

23     Matthews v Accident Compensation Corporation, above n 2, at [32], [33] and [35].

24     (emphasis added).

argument raised in submissions that Mr Aria’s skin fragility was caused by the ulcers and was therefore a contributing factor to Mr Aria’s ongoing incapacity. As is made clear in that paragraph, there was limited evidence on the point and I concluded that it did not assist him.

[53]No error of law arises on this ground.

Incorrect approach to causation

[54]Mr Beck framed this argument in his notice of appeal as follows:

(g)The Court failed to apply the law as stated by the Court of Appeal in Ambros v Accident Compensation Corporation [2008] 1 NZLR 340 (CA).

[55]   Mr Beck argues this Court failed to refer to any legal tests related to causation or ask whether there was more than one contributing factor to Mr Aria’s incapacity.

[56]   This Court dealt with Mr Beck’s argument that there were multiple causes of Mr Aria’s incapacity and therefore the Judge failed to apply the appropriate causation test. The causation test Mr Aria argued for was whether Mr Aria would not have been incapacitated “but for” the 2007 injury.25

[57]The High Court noted in its decision:

[25] … Mr Beck says the 2007 personal injury was a material contributing factor to Mr Aria’s ongoing incapacity. In his argument, Mr Aria would therefore have been eligible for weekly compensation beyond December 2009.

…

[33] Once the ulcers had healed the only knee/ankle incapacity was that caused by the 1974 personal injury. The 2008 surgery was triggered by damage caused by the 1974 injury and any aggravation flowing from the 2008 surgery was from the 1974, and not the 2007, injury.

[58]   This Court was not deciding matters afresh. In order for causation to be an issue, the District Court must have erred in its factual assessment that the 1974 injury was the sole cause of Mr Aria’s incapacity. This Court found the Court did not err in

25     Ambros Accident Compensation Corporation [2008] 1 NZLR 340 (CA) at [24].

that assessment. As no new factual findings were made as to what caused Mr Aria’s incapacity, no causation assessment was necessary.

[59]No error of law arises here.

Burden of proof

[60]Mr Beck framed this argument in his notice of appeal as follows:

(h)The Court erred in concluding that the District Court had correctly applied the onus under s 117 of the Act.

[61]   Mr Beck argues this Court erred in its assessment of the District Court’s approach to the burden of proof. He says this Court did not consider the provisions giving rise to the burden of proof under the Act and therefore it erred in law.

[62]I concluded on this issue as follows:

[37]      Mr Beck submits that the Judge failed to address s 117 of the Act, which deals with the circumstances in which ACC may suspend or cancel an entitlement. Mr Beck submits that under that section the burden of proof rests on ACC to show a proper basis for cancelling the entitlement.26

[38]      The Judge did not express her conclusion with express reference to the burden of proof, rather she made an assessment on the basis of the medical evidence as a whole. In light of my assessment of the facts above, I am satisfied that there was sufficient evidence available that it was open to the Judge to conclude that the 2007 injury was no longer operative.

[63]   Mr Beck had also put forward this issue as a ground for leave to appeal at the leave application heard by Collins J. No leave for appeal was granted on that ground.27 It was again raised before me in the appeal. While I noted Mr Beck had raised the argument, I did not need to consider it in further as I concluded that there was sufficient evidence before the District Court Judge to make the finding she did.

[64]   Mr Aria sought to extend the scope of the appeal beyond the issues posed for determination on appeal in this Court. As Venning J in Ives v Accident Compensation Corporation noted:28

26     Referring to Ellwood v Accident Compensation Corporation [2007] NZAR 205 (HC).

27     Matthews v Accident Compensation Corporation, above n 2, at [10] and [14].

28     Ives v Accident Compensation Corporation [2012] NZHC 3442.

[9]        A number of points counsel sought to raise go beyond the question posed for determination by this Court.

…

[10]      This is an appeal on a question of law.29 It is not a general appeal. While this Court has jurisdiction to extend or amend the grounds of appeal if such a course is in the interests of justice30 the interests of justice do not support such an extension in the present case. … Further, the judicial resources of this Court should not be applied to ever expanding issues for which leave has not been granted.

[65]   This case did not support an extension to the grounds of the issues for determination to include the new matters raised in submissions.

[66]No error of law arises on this ground.

Conclusion

[67]   For the reasons given above, I cannot reasonably identify any seriously arguable questions of law. I conclude the grounds advanced for leave to appeal have not been made out.

[68]   I have found there are no serious questions capable of bona fide and serious argument. In addition, there are no matters of sufficient public importance involved in this case to justify the cost and delay of a further appeal. The matter is no doubt of importance to Ms Matthews, but the claimant himself is now deceased. The overall interests of justice do not support a further appeal being granted.

[69]   The application for leave to appeal to the Court of Appeal on all proposed grounds is refused.

29     Accident Rehabilitation and Compensation Insurance Act 1992, s 97.

30     O’Neill v Accident Compensation  Corporation  (No.  2)  HC  Auckland  CIV-2008-404-8482, 31 March 2010 at [15].

Costs

[70]   If there is any issue as to costs counsel should file an application and memorandum within seven days of the date of the delivery of judgment. Any response should be filed within a further five days and any reply within a further three days.

Grice J

Solicitors:

Hazel Armstrong Law, Wellington