Weal v Accident Compensation Corporation - [2016] NZHC 2612

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-176 [2016] NZHC 2612

IN THE MATTER OF
An intended appeal under s 162 of

Accident Compensation Act 2001

BETWEEN

DOUGLAS JAMES WEAL Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 17 August 2016

Appearances:

A C Beck for the Applicant
D A Laurenson QC and H H Ifwersen for the Respondent

Judgment:

1 November 2016

JUDGMENT OF NICHOLAS DAVIDSON J (APPLICATION FOR SPECIAL LEAVE TO APPEAL)

WEAL v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 2612 [1 November 2016]

INDEX

Para

A. A mosquito bite in Fiji and its aftermath .................................................. [1]

· First claim ........................................................................................... [7]

· Second claim ....................................................................................... [9]

· Revocation of 13 December 2004 decision ......................................... [15]

· The “entitlement review decision” of 19 April 2007 .......................... [16]

· The “deemed review decision” – reinstatement of
cover – 12 August 2008 ...................................................................... [17]

· Appeal against deemed review decision ............................................. [18]

· The deemed review quashed, and the 11 October 2006
decision referred to a Reviewer........................................................... [21]

B. The 2013 Review.......................................................................................... [24]

· The Review decision ........................................................................... [34] C. Decision on appeal – 31 July 2015 - His Honour Judge MacLean ......... [54] D. Two Issues .................................................................................................... [65]

E. Application for leave to appeal – Decision of
His Honour Judge Harrison 7 March 2016 .............................................. [66]

F. This application for special leave to appeal to the High Court ............... [73]

· First alleged error of law – incorrect application of s 65(1) onus ..... [76]

· Second alleged error of law – incorrect interpretation of
s 28 of the Act ..................................................................................... [82]

· Third alleged error of law – admission of Dr O’Connor’s evidence . [91]

· Fourth alleged error of law – rejection of Mr Weal’s evidence ......... [96]

· Fifth alleged error of law – refusal to award costs ............................. [100]

· Sixth alleged error of law – entitlements appeal................................. [102]

G. Conclusion .................................................................................................... [104]

A. A mosquito bite in Fiji and its aftermath

[1] Mr Weal was bitten by a mosquito (an “arthropod”) while in Fiji in 2003. He subsequently contracted dengue fever.

[2] On 14 January 2004 his general practitioner, Dr O’Connor, lodged a claim for accident compensation cover and described the injury/accident as “holidaying in Fiji, bitten by mosquito causing Dengue fever”.

[3] Section 22(1) of the Accident Compensation Act 2001 (the Act) provides that cover for personal injury suffered outside New Zealand is available if that person would have cover for such injury if it had been suffered in New Zealand. The cover applies if the personal injury was caused by an accident to the person which may include “the contraction of any disease carried by an arthropod as an active vector (such as malaria if it results from a mosquito bite)” provided that it is work-related.1

[4] The accident compensation process which followed has now run for more than 12 years during which time the Accident Compensation Corporation (the Corporation) has, over time, accepted and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 2612
Decision Date: 1 November 2016

CaseChat Overview and Summary

In the matter of an application for special leave to appeal under s 162 of the Accident Compensation Act 2001, the High Court of New Zealand was asked to decide whether the applicant, Mr Weal, should be granted special leave to appeal the decision of the District Court, which had dismissed his appeal against the decision of the Accident Compensation Corporation (the Corporation) to decline his claim for accident compensation. Mr Weal had contracted dengue fever in Fiji in 2003 after being bitten by a mosquito. He had initially claimed for accident compensation cover on the basis that the injury was work-related, but the Corporation declined the claim on the basis that the injury was not work-related. The District Court had upheld the Corporation’s decision, finding that Mr Weal had not been working in Fiji at the time of the mosquito bite and that the “place” of the injury was not sufficiently particularised. Mr Weal sought special leave to appeal to the High Court, arguing that there were several alleged errors of law in the District Court’s decision. The High Court considered each of the alleged errors of law, finding that none of them were questions of law capable of bona fide and serious argument. The Court found that the Corporation had properly discharged its onus to establish that the decision to grant cover was clearly wrong, and that the Court had correctly interpreted s 28 of the Act. The Court also found that the District Court had properly admitted Dr O’Connor’s evidence and rejected Mr Weal’s evidence, and that the refusal to award costs was a matter of discretion. Finally, the Court found that the issue of delay in providing entitlements was moot, as there was no cover. The application for special leave to appeal was refused, and costs were reserved.

Orders