Weal v Accident Compensation Corporation
[2016] NZHC 2612
•1 November 2016
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 RespondentJudgment:
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 then declined cover on several grounds, but in particular that the Act excludes from the definition of “an accident”, the contraction of any disease carried by an arthropod unless it is work related.
[5] The Corporation says Mr Weal’s illness is not work-related. That position was upheld in a decision given by the Reviewer, Mr T M Gresson, on
17 September 2013, after a hearing on 23, 24, 25 January, and 12 March 2013. The review decision held that Mr Weal was not in Fiji for work, and therefore he had not suffered a work-related injury, but another important conclusion was that the “place” of injury, described as “Fiji”, was not sufficiently particularised for the purposes of the legislation.
[6] The evolution of the accident compensation process to that point is set out as follows.
1 Section 25(2)(c).
First claim
[7] Mr Weal’s initial claim was declined on 15 January 2004 on the basis that “personal injury” does not include “personal injury caused wholly or substantially by a gradual process, disease or infection”.2
[8] Mr Weal applied for a review of the original decision to decline cover. That review was dismissed by a decision dated 8 June 2004.
Second claim
[9] The Corporation explained to Mr Weal that the Act excludes compensation for the contraction of any disease carried by an arthropod unless such is work-related.
[10] Mr Weal lodged a second claim on 20 October 2004, asserting that his contraction of dengue fever was a work-related injury.
[11] A further medical certificate was provided by Dr O’Connor. A questionnaire completed by Mr Weal said he was managing director of his employer, Blackridge Ltd, formerly Planet 2000 Ltd (Planet 2000). It recorded that:
Required to travel overseas in course of employment. Company accountant has confirmed travel to Fiji was business trip, paid for by the company.
[12] On 6 December 2004, Mr Weal advised Mr Fogarty, a Corporation case manager, that he was in Fiji as an instructor and tutor in the hospitality field and he was teaching chefs, waitresses and bartenders at hotels. Mr Fogarty sought proof that Mr Weal was on business and not on holiday. Mr Weal made a statutory declaration on 9 December 2004 stating that:
…in March 2003 I travelled to Fiji in my capacity as Managing Director of a company engaged in the training and assessment of staff in the hospitality industry. The trip was not a holiday or vacation but for the purposes of conducting a review of staff training in the hospitality industry in Fiji.
2 Accident Compensation Act 2001, s 26(2).
[13] Based on this, the Corporation accepted Mr Weal’s claim to cover on
13 December 2004.
[14] That still left weekly compensation to be assessed. The Corporation undertook this assessment over some time, but delay led to Mr Weal seeking a review on 28 September 2006, claiming that there had been unreasonable delay in processing his claim.
Revocation of 13 December 2004 decision
[15] About the time of Mr Weal’s review based on unreasonable delay, the Corporation decided that its 13 December 2004 decision to accept Mr Weal’s claim on the basis of his statutory declaration was incorrect. It concluded that there was insufficient evidence to support the claim that the injury was work-related, and revoked its decision, purportedly pursuant to s 65 of the Act. On 11 October 2006 the Corporation wrote to Mr Weal:
ACC has looked carefully at all the information now available, and has decided that this claim should not have been accepted. The claim was originally accepted on the basis of your statutory declaration that stated that you had travelled to Fiji in your capacity as Managing Director of a company and that the trip was not a holiday or vacation. Since that time we have received information from you that indicates the initial reliance on the statutory declaration caused ACC to make the original decision in error. ACC considers that the original decision was incorrect and that there is insufficient evidence to support your claim that your contraction of Dengue Fever via a mosquito bite was work related.
The “entitlement review decision” of 19 April 2007
[16] Mr Weal’s application for review based on the Corporation’s delay was dismissed in the “Entitlement Review Decision” dated 19 April 2007 on the basis that there had been no unreasonable delay. Mr Weal appealed that decision to the District Court which dismissed the appeal as part of the judgment of His Honour Judge MacLean dated 31 July 2015, from which Mr Weal now seeks special leave to appeal to this Court.
The “deemed review decision” – reinstatement of cover – 12 August 2008
[17] On 12 August 2008, the District Court held that Mr Weal’s application to review the revocation decision of 11 October 2006 had led to a deemed review decision in his favour on 13 January 2007 pursuant to s 146 of the Act, because there had been a failure to set a date for a review hearing within three months of receiving the application for review.3 That meant the Corporation’s decision of
11 October 2006 was set aside, and cover was reinstated in accordance with its
decision of 13 December 2004.
Appeal against deemed review decision
[18] The Corporation then appealed the deemed review decision of the District Court and raised as a substantive issue the correctness of the Corporation’s decision of 11 October 2006 revoking cover.
[19] Briefs of evidence were filed, including that of Mr McNeill, Mr Weal’s former accountant, who said that Mr Weal operated a property development business through Blackridge Ltd which provided management services for Planet Career Training Ltd (Planet Career). Planet Career had ceased functioning after it sold its assets to Mahurangi Technical Institute (the Institute) on 31 December 2002, and after that Blackridge Ltd was not involved in the hospitality business. This was supported by the evidence of Mr Decker, a director of the Institute, who said that as at 10 December 2002 the Institute had completed the purchase of Planet Career and its assets. Mr Decker further said that in early 2003 Mr Weal told him he had found a way to get his new Russian wife into the country and that he would by combining a marriage and honeymoon in Fiji for that purpose.
[20] After receiving these briefs of evidence, Mr Weal provided a statement of evidence that said, for the first time, that he was self-employed when he travelled to Fiji. He said although he thought it was truthful at the time, his statutory declaration of 18 September 2006 that he was employed by Blackridge Ltd might not have been correct, and he had travelled to Fiji in the course of conducting his “personal
business affairs”.
3 Section 146(1)(a).
The deemed review quashed, and the 11 October 2006 decision referred to a
Reviewer
[21] The District Court made orders by consent quashing the deemed review decision and referring the issue of the correctness of the Corporation’s decision of
11 October 2006 to a Reviewer (Mr Gresson). The Reviewer gave his decision on
17 September 2013.
[22] The sequence described came to a watershed consideration of evidence in the
2013 review, addressed again on appeal by His Honour Judge MacLean in the District Court, and thence on application for ordinary leave to appeal to this Court, heard and dismissed in the District Court before His Honour Judge Harrison.
[23] This judgment determines the application for special leave to appeal to this
Court.
B. The 2013 Review
[24] The application for special leave to appeal to this Court relates to the judgment of His Honour Judge MacLean delivered on 31 July 2015. To understand the challenge to that judgment, the evidence referred to above must be comprehended, and Mr Gresson’s review decision analysed.
[25] An important consideration in that review, and in the District Court on appeal, and in this Court, is that Mr Weal’s statutory declaration of 9 December 2004 was emphatic that he went to Fiji in his capacity as the managing director of a company engaged in the training and assessment of staff in the hospitality industry. He was equally emphatic in asserting that “the trip was not a holiday or vacation but for the purposes of conducting a review of staff training in the hospitality industry.” That declaration led directly to the grant of cover on 13 December 2004.
[26] Before Mr Gresson matters had developed over the years. Briefs of evidence of 17 witnesses were adduced on behalf of the Corporation together with evidence from Mr Weal, and agreed documents. The hearing took four days and four of the
witnesses, together with Mr Weal, were required for cross-examination. His evidence was thoroughly tested by counsel for the Corporation, Ms Ifwersen.
[27] Mr Gresson rightly put aside reference in the hearing to the fact the Corporation had conducted a fraud investigation in relation to the claim for work-related compensation, as that had no probative value in itself. The issue of Mr Weal’s conduct throughout the compensation process was, however, at large and he was entitled to decline to answer any question where there was the possibility of self-incrimination.
[28] Mr Weal gave evidence which expanded on his then most recent claim that he was self-employed and working in Fiji when he was bitten by a mosquito.
[29] Mr Weal said he did not tell Dr O’Connor he was on holiday while in Fiji, that he did not see the doctor’s computer screen, and that the claim form allegedly signed by Dr O’Connor was fraudulent.
[30] In a brief of evidence of 14 August 2012 Mr Weal said he did not know at first that the injury had to be work-related for compensation to be payable. He said he did spend some time on holiday in Fiji. This was after he had received a copy of the brief of evidence of a Ms Surinova, his partner who later became his wife, which said she and Mr Weal were together most of the time in Fiji, including a sailing trip and staying at various resorts.
[31] Mr Weal did not know when he was bitten by the mosquito, but the first time he felt ill, could not eat, and felt strange, was in a Japanese restaurant in Suva on
1 April 2003. He said that in the third week he was in Fiji he began having bouts of illness.
[32] Dr Roberts, a medical practitioner specialising in infectious diseases, gave evidence that it takes about four to seven days after being bitten for the symptoms of dengue fever to develop, which include fever, chills, and pains leading to quite severe muscle back pain. The illness usually lasts about two to seven days, after which a person will feel unwell, but there are no long-term consequences.
[33] Mr Weal may have developed the symptoms on 1 April 2003 and still experienced them on 8 April, within these broad bounds. As he had a temperature of
39.6 degrees on 8 April 2003, he was probably bitten about 27 March 2003. He definitely had dengue fever. Blood tests of 10 and 22 April 2003 demonstrated that he had developed an immune response. He was probably bitten a few days either side of 27 March 2003, when on his evidence he was staying on an island filling in time until he could go and see “the man in Suva”, or while he was staying with the man in Suva “having a few quiet little chats on the veranda” about how to conduct business in Fiji. For reasons which will become apparent, it does not much matter exactly what date he was bitten. The injury is the contraction of the disease which may further complicate the question of whether the injury was work-related, and the “place” of injury, but for reasons given it does not matter in this case.
The Review decision
[34] Mr Gresson applied s 145(2) of the Act which provides that on any review of a decision revised by the Corporation under s 65(1) of the Act, the Corporation must establish that the decision revised was made in error. This was held by a full court of Gendall and Ronald Young JJ to mean that the decision must be “clearly wrong”.4
The inquiry in that regard may include reference to information gleaned since the original decision, which is only logical.
[35] A claimant must establish a claim on the balance of probabilities, and the Corporation must be satisfied of that before it can grant cover.5 Section 141(4) of the Act permits the admission of relevant evidence, whether or not admissible in a court. Where hearsay in nature there is always the question of weight to be placed upon such evidence. The principles of relevance, inability to adduce direct evidence, and reliability are well established, and Mr Gresson recognised that the fact that a
primary witness is unable to give evidence is not a good reason to admit unreliable hearsay evidence. The Evidence Act 2006 imported with some particularity the
applicable common law principles in this regard.
4 Accident Compensation Corporation v Bartels [2006] NZAR 680 (HC).
5 Ellwood v Accident Compensation Corporation [2007] NZAR 205 at [52](a).
[36] Where there was conflict on the evidence, Mr Gresson generally preferred that of the Corporation and he found parts of Mr Weal’s explanations to be “less than convincing”. There were discrepancies in his evidence. Overall, he preferred the account given by the witnesses called by the Corporation and his findings were made on that basis.
[37] Mr Gresson’s decision addressed the further attendance by Mr Weal on Dr O’Connor on 20 October 2004 after which the second claim for compensation was made. Mr Weal said he was employed from 1996 by Planet 2000, which later became Blackridge Ltd. He said he was managing director of that company and was required to travel overseas and he spent up to 10 hours per day on various aspects of work tasks. He said that when his symptoms began to develop his workplace location was Fiji. He told Mr Fogarty, the case manager, that he had six day working weeks typically averaging 10 hours per day.
[38] A private investigator had been engaged by the Corporation, and he interviewed Mr Weal who was unable to explain the nature of his work while he was in Fiji. Mr Gresson regarded Mr Weal’s responses in that interview as far from satisfactory. He had terminated the interview after refusing to answer any questions about Planet Career, saying that he was no longer involved with that company and that it was not his employer.
[39] Mr Weal’s detailed statutory declaration of 18 September 2006 had expanded on his time spent in Fiji. He declared:
I went to Fiji on the 2nd week in March 2003. For the first week I stayed in a small hotel in Nandi. During that week I visited the resorts in the Mamauca Islands, taking day trips by boat from Denerau to Musket Cover, Beachcomber Island, Treasure Island, Plantation Island and others. I also travelled by road to the resorts on the Coral Coast. In these day trips I spoke to bar managers, chefs, hotel managers and in one case the resort owner (Dick Smith, owner of Musket Cove). The purpose of my discussion was to establish the standard and method of training of bar, restaurant and kitchen staff at these resorts, with the view of seeking business opportunities in the area of staff training.
After one week I went and stayed at Beachcomber Island for 3 days. On leaving Beachcomber Island, I travelled to Lautoka then on to Suva.
I spent 3 or 4 days in Suva, staying in a below average Indian run hotel. During my time in Suva I visited the international hotels located there but was unable to gain access to staff. Suva did not appear geared for tourists but for government and foreign related guests. I also visited the Fijian Institute of Technology (FIT) but was unable to have discussions with relevant personal (sic) at this time.
I then went back to Denerau, and joined a yacht travelling up to the Yasawa Islands. On the return voyage from the Yasawas I was dropped of (sic) the island of Malamala, and stayed for two days courtesy of Capt. Cook Tours with which I had previously had discussions with (sic) about their hospitality training during my first week stay in Nandi.
On returning to Denerau, I flew from Nandi to the Ovalau islands and stayed for 4 or 5 nights at the Empire Hotel in Levuka. I then flew to Suva and stayed for about 5 nights in a private house. During this second stay in Suva I visited FIT again, and this time I had discussions with the registrar and a lady with overall responsible (sic) for hospitality and cooking programs of FIT. We discussed courses, content, accreditations, and delivery, particularly in relation to the industry in Fiji.
I also had discussions with the owner of the house I was staying about the financial and political issues relating to doing business in Fiji, as he was from New Zealand and had owned various businesses in Fiji for over 20 years.
I then returned to Nandi and stayed in the country club, where I began having bouts of illness. During this time I visited the Sheraton in Denerau at the invitation of the House Manager, a meeting I had set up some weeks earlier.
…
I do not remember the names of the hotels I stayed at or the exact dates, or the names of the numerous people of (sic) spoke to during my trip, as I no longer have my names made during the trip. The information on where I stayed and the dates can be obtained by the invoices for the trip, which should be part of the PCT accounts surrendered to the Official Assignee in 2003.
I spent more that (sic) half of my four weeks in Fiji staying in Nandi and Suva, because I had business to conduct. If one was in Fiji for a holiday one would definitely not spend so much time staying in these unpleasant places.
[40] After the Corporation revoked its decision to accept cover, Mr Weal filed a brief of evidence in the District Court which said that although he thought that the statutory declaration of 18 September 2006 was true and correct at the time, after receiving further accounting advice, he believed his comments about being
employed by Blackridge Ltd might not be correct “… in that [he was] was ‘self employed’ ”. He then said “I had travelled to Fiji for [the] purposes of my employment, that being self employment”. He said he was self employed but also owned two companies, Blackridge Ltd which was involved in property management, and, despite his previous denial, Planet Career.
[41] Mr Weal’s evidence before Mr Gresson was that there were a number of reasons for his trip, including the investigation of business and investment opportunities which included setting up an international cooking school, reviewing and updating hospitality courses which he had developed, and discussions with banks and property developers. However, he could not say what entity he was working for because it was “all scrambled up”. Ultimately he said that he was working for Blackridge Ltd. Mr Gresson summarised the position this way: “He accepted he was holidaying in Fiji with Ms Surinova but at the same time he had his eye on the possibility of a business opportunity.”
[42] Dr O’Connor’s evidence was clearly relevant, but there was still the question of its relative weight. He was not available to be cross-examined on the clear conflict between him and Mr Weal as to the circumstances surrounding the two claim forms being completed, particularly given that Mr Weal denied he had told Dr O’Connor he was on holiday. Further, there was Mr Weal’s assertion that he was not aware the documents referred to his being on holiday, that the ACC 45 Form was not signed by him, and his allegation that it was a “fraudulent” document. Mr Gresson concluded that because Dr O’Connor had been questioned on a number of occasions and his evidence was consistent, it was credible and inherently reliable. Dr O’Connor said consistently that Mr Weal informed him he was on holiday in Fiji. His evidence was that his patient could see his computer screen, and what was typed there. This evidence, while brought to account, was not in itself decisive in the decision reached.
[43] The allegation that the ACC 45 Form was “fraudulent”, and an invention of the Corporation in 2007, was met by the evidence that the Form was submitted electronically by Dr O’Connor on 14 January 2004, and that it was referred to in the review decision of 8 June 2004.
[44] Ms Surinova was with Mr Weal between 13 March 2003 and 6 April 2003. They married, but later separated and she did not want to be involved in the hearing. There was evidence of statements made by her in various forms including some which were provided to the private investigator.
[45] Mr Gresson cautioned himself about Ms Surinova’s evidence as there were inconsistencies, and potential language difficulties. In some respects Ms Surinova offered support because she deposed that Mr Weal had told her that he was on business. She did not know of any business meetings but she said that Mr Weal told her that the phone calls he made in Suva were business-related. Her evidence, however, was not consistent with Mr Weal working up to 10 hours per day in the weeks leading up to the mosquito bite, as she described most of the time in Fiji as being in the nature of holiday.
[46] Mr Fogarty was not cross-examined, but Mr Weal suggested his record of the telephone discussions with him was “wildly inaccurate” because he never said he was in Fiji as an instructor or tutor in hospitality, teaching chefs and bartenders. Mr Weal contended that Mr Fogarty told him what to say in his declaration, but the correspondence was directly to the contrary. Further, there were some notable inconsistencies in what Mr Weal said.
[47] Having considered the various evidential accounts, Mr Gresson moved to the question whether the decision granting cover was made in error. The first and second claim files had been examined in Wellington and the potential discrepancy between the two claims identified. Simply put, the first claim asserted that Mr Weal was on holiday in Fiji, and the second that he was on business. That led to the investigations referred to. There was no presumptuous revocation by the Corporation, but enquiry, and Mr Weal was given the opportunity to provide further information.
[48] Mr Gresson proceeded on the basis that the Corporation carried the burden of proving that its decision to grant cover was “clearly wrong”, and in doing so relied on two categories of evidence, the first being of those witnesses whose accounts
supported the finding Mr Weal was only on holiday in Fiji, and the second showing the discrepancies in the many statements made by Mr Weal.
[49] Mr Beck submitted that if Mr Weal was in Fiji for a business purpose that was sufficient to make the mosquito bite a “work-related injury”, to which the Corporation responded through Ms Ifwersen that Mr Weal was plainly on holiday in Fiji and did not work at all.
[50] Mr Beck’s proposition for Mr Weal, that the slightest business purpose associated with what was predominantly a holiday trip meant cover applied, required consideration of s 28 of the Act. That section reads:
(1) A work-related personal injury is a personal injury that a person suffers-
(a) while he or she is at any place for the purposes of his or her employment, including, for example, a place that itself moves or a place to or through which the claimant moves; or
(b) while he or she is having a break from work for a meal or rest or refreshment at his or her place of employment; or
(c) while he or she is travelling to or from his or her place of employment at the start or finish of his or her day’s work, if he or she is an employee and if the transport –
(i) is provided by the employer; and
(ii) is provided for the purpose of transporting employees; and
(iii) is driven by the employer or, at the direction of the employer, by another employee of the employer or of a related or associated employer; or
(d) while he or she is travelling, by the most direct practicable route, between his or her place of employment and other place for the purposes of getting treatment for a work-related personal injury, if the treatment –
(i) is necessary for the injury; and
(ii) is treatment of a type that the claimant is entitled to under Part 1 of Schedule 1.
(2) In subsection (1)(d), most direct practicable route does not include those parts of a route that deviate unreasonably from, or interrupt, a journey for purposes unrelated to the employment or the treatment.
[51] At the heart of the section is the requirement the work-related personal injury generally be suffered while at any place for the purpose of employment. That inherently requires factual consideration but the section does indicate some degree of latitude and extension of such “place” of work based on a proximate or purposeful connection with that “place”. An employee may be at any place for the purposes of employment. Mr Weal could not say exactly where he was in Fiji when he was bitten, and that is not of itself beyond belief.
[52] Mr Gresson concluded that on all the evidence, it was clear that Mr Weal was only ever on holiday in Fiji, that his version of events lacked credibility given his various and differing accounts, that he changed his application for cover when he was advised that the dengue fever needed to be work-related, and that he gave differing and inconsistent accounts of employment, and self-employment.
[53] Mr Gresson concluded:
For these reasons I find the Applicant’s many contradictory claims in relation to his work-related activities while in Fiji for Blackridge, or [Planet Career] or in a self-employed capacity are not plausible and are rejected.
C. Decision on appeal – 31 July 2015 - His Honour Judge MacLean
[54] Judge MacLean heard Mr Weal’s appeal against Mr Gresson’s review
decision.6
[55] The Judge addressed s 65 of the Act, which concerns the power of the
Corporation to revise its decisions.
65 Corporation may revise decisions
(1) If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error.
(2) The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading.
6 Weal v Accident Compensation Corporation [2015] NZACC 213 (DC).
(3) A revision may –
(a) amend the original decision; or
(b) revoke the original decision and substitute a new decision.
(4) Every amendment to a decision, and every substituted decision, is a fresh decision.
…
[56] The judge addressed the fundamental issue whether what happened to
Mr Weal was a work-related personal injury, and referred to s 28(1)(a) set out above.
[57] Cover may apply for an injury which occurs outside New Zealand under s 22 of the Act if the claimant is ordinarily resident in New Zealand when he or she suffers the personal injury and would have had cover if it had been suffered in New Zealand.7
[58] Judge MacLean said there was an onus on the Corporation to prove that Mr Weal should not have had cover granted. If there was no cover then of course there was no deemed entitlement based on delay by the Corporation. Entitlement depends on cover.
[59] Judge MacLean put the issue before him on appeal:
… the central and potentially determinative issue is whether on examination of all the evidence, including consideration of the Reviewer’s findings, the Court can determine on the balance of probabilities whether or not this was a work-related personal injury.
[60] This led to focus on the words “at any place” in s 28(1)(a). Mr Weal maintained the “place” was Fiji and that he was in the country for several purposes including employment which in his case was exploring the possibility of pecuniary gain or profit. The Corporation contended that “any place” was too wide a definition. Judge MacLean referred to several authorities, which addressed whether
a claimant was at a “place” in circumstances sufficiently associated with work.8
7 Sections 22(1)(c) and (d).
8 Blakie v Accident Compensation Corporation [2012] NZACC 381 (DC); Woolyarns Ltd v Accident Compensation Corporation [2006] NZACC 67 (DC); QBE Workable Ltd v Accident Compensation Corporation [2002] NZACC 27 (DC).
[61] The judge said that while there was some indication when Mr Weal was bitten by a mosquito (in late March/early April 2003), the Court had no idea of where the bite was suffered, other than that it was in “Fiji”. His Honour held that that was not a sufficiently particularised “place”, and the appeal failed on this ground.
[62] I have some observations about this conclusion and will turn to it in due course, but for Judge MacLean it disposed of the appeal.
[63] He went on to address the further points on appeal, that the decision was wrong in its reliance on inadmissible evidence and that the Reviewer’s findings could not be justified. The Judge concluded that there was ample reason for Mr Gresson to reach the conclusion he did, including the weight placed on contested evidence. The Judge’s conclusion was that Mr Gresson’s decision reflected “careful, comprehensive and considered examination of the evidence and issues
which combined led the Reviewer to take the approach he did.”9
[64] A court on appeal must make its own assessment based on all the evidence available. Judge MacLean found no reason to disagree with Mr Gresson’s decision. Hence he concluded that:
(a) section 65 was correctly applied;
(b) it was insufficient to define the “place” of work as “Fiji”;
(c) there was substantial change in the versions of events put forward by Mr Weal, and internal inconsistencies, such as to justify the factual conclusions at which the Reviewer arrived;
(d)the Reviewer refused to make an award of costs in favour of Mr Weal and he agreed. Credibility findings were required which were adverse to Mr Weal. He accepted the submission for the Corporation that in combination the evidence considered by the Reviewer clearly
established that Mr Weal was not working in Fiji.
9 Weal v Accident Compensation Corporation, above n 6, at [43].
D. Two determinative issues
[65] Before I address the application for leave to appeal from the judgment of Judge MacLean, and the application for special leave to this Court, I record the two substantive issues which are central to disposition. The first is the approach to the question of “place” which without further definition beyond “Fiji” meant it was not possible to assess whether the injury was “work-related”. I consider for reasons discussed below that there may be circumstances where a generality in the description of “place” may not preclude cover being granted. The second, and as this judgment holds, the dispositive issue, is whether the Reviewer’s decision, upheld by the judgment of His Honour Judge MacLean, is correct that whether or not “Fiji” is a sufficient definition of “place”, the evidence did not disclose any work-related activity that would have entitled Mr Weal to cover.
E. Application for leave to appeal – Decision of His Honour Judge Harrison
7 March 2016
[66] Mr Weal sought leave to appeal against the judgment of Judge MacLean. By judgment of 7 March 2016, Judge Harrison declined leave to appeal.10
[67] Judge Harrison referred to Judge MacLean’s conclusion that regardless of where the onus lay in the context of revocation of cover, there was no evidence confirming on the balance of probabilities the “place” where the injury occurred, and therefore no ability to determine whether at the time of the injury Mr Weal was involved in work. Hence the “place” could not be a “country”. However, Judge Harrison also considered that Judge MacLean recognised the Court could look at all the information available. He had the same information as the Reviewer, and had no reason to disagree with the process the Reviewer adopted and the conclusions reached. That included the finding that Mr Weal was not working in Fiji, although primarily because there was insufficient evidence of a defined “place” other than “Fiji”.
[68] Mr Beck, for Mr Weal, submitted that treating “Fiji” as outside the ambit of
“place” for the purposes of s 28(1)(a) was too narrow an approach, and that the
10 Weal v Accident Compensation Corporation [2016] NZACC 56 (DC).
legislation should be interpreted in a generous and unniggardly way. The Corporation on the other hand submitted that the Judge was correct that Fiji could not be a “place”. Judge Harrison agreed with the Corporation. He considered that s 28(1)(a) makes it clear that a work-related personal injury is one which a person suffers while he or she is “at any place for the purposes of his or her employment…”, and Mr Weal could not show that.
[69] Judge Harrison also addressed s 65 of the Act and concluded that the decision to revoke the original decision was solely a question of fact, and the onus on the Corporation was met.
[70] The next question of law raised on the application for leave to appeal, was that the Court failed to exclude inadmissible evidence and that it reached conclusions that relied on that evidence, and excluded other evidence without a proper basis for doing so. Judge Harrison concluded that these evidential issues went to whether Mr Weal was engaged in employment in the context of his being in Fiji for personal and recreational purposes as well as work-related matters. He concluded that these were questions of fact and did not assist Mr Weal in establishing the “place” at which the injury occurred. He did not accept a point of law arose in this regard, but if it did, it was again disposed of by the requirement for a “place” more specific than “Fiji”.
[71] Judge MacLean refused to award costs to Mr Weal because he did not consider the review was reasonably brought for the purposes of s 148(2)(b) of the Act. Judge Harrison did not disturb that decision. That was a decision taken in the Judge’s discretion, and there is no indication that there was any failure to consider relevant material in that regard.
[72] Because Mr Weal was not entitled to cover, the issues relating to any delay in providing entitlements fell away.
F. This application for special leave to appeal to the High Court
[73] An application for special leave to appeal brought under s 162(3) of the Act requires that a point of law must be identified capable of bona fide and serious
argument with a reasonable prospect of success.11 It is a significant step, not to be granted as a matter of course. It must be shown that an issue of principle is at stake or that a considerable amount hinges on the decision. Leave should be granted only where the interests of justice dictate. As the District Court has refused leave, the applicant is required to show that some factor of consequence has not been properly taken into account.
[74] A question of law arises where there has been misinterpretation of and therefore misdirection on the law, or where any relevant matter has been overlooked, or an irrelevant matter has been brought to account. Otherwise, an error of law may arise where the ultimate conclusion on the facts is insupportable, and clearly untenable. That as a matter of principle would arise if there is no evidence to support the determination, or the evidence is inconsistent with and contradictory to the determination, where the true and only reasonable conclusions contradict the
determination.12
[75] Against the litigation history canvassed above, Mr Beck advanced before this
Court the following alleged errors of law.
First alleged error of law – incorrect application of s 65(1) onus
[76] Mr Beck says that both the Reviewer and the District Court Judges have incorrectly interpreted and applied the onus under s 65(1), that the Corporation was required to prove that Mr Weal could not have been working at the time he suffered the mosquito bite, and that there is no explanation as to how the Corporation had discharged that onus. He submits that the inference should be that the Judges (and the Reviewer) have incorrectly interpreted and applied the onus.
[77] I do not consider that that submission is correct, that the Corporation must
prove that Mr Weal could not have been working when he suffered the injury. The correct question for the Corporation, and on appeal, is whether on the evidence it is
11 Marsh v Accident Compensation Corporation [2015] NZHC 3208 at [27]-[28]; O’Neill v Accident Compensation Corporation [2015] NZHC 2823 at [13]; Kenyon v Accident Compensation Corporation [2002] NZAR 285 (HC) at [15].
12 Vodafone New Zealand v Commerce Commission [2011] NZSC 138, [2012] 3 NZLR 153 at
[51] - [52]; Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC) at [24] – [27].
established that the decision to grant cover was wrong. That is, on all the evidence available, and correctly applying the law, is it clear that the earlier decision was wrong?
[78] The question of “place” was a primary issue before the Court. It was not, however, the only consideration. Place may connect the injury to the work but in some cases it will not resolve the question. Judge MacLean identified an “evidential onus” on the Corporation to “clearly establish” the decision to grant cover was wrong. That may not be based solely on the evidence, but an overall consideration of the decision under review.
[79] In my view, there is no credible argument that the Reviewer or the Judges on appeal or for leave misunderstood or misapplied the obligation on the Corporation to establish that its original decision to grant cover was clearly wrong. Consideration of all the evidence demonstrated it was clearly wrong. The Reviewer, then Judge MacLean properly held that Mr Weal was not working at all in Fiji. All this is irrespective of the nuances of the “place” of work.
[80] Mr Weal changed his story about what he was doing in Fiji in order to meet the “work-related” requirement, and the inconsistencies in his evidence and the change in his position were relevant evidentiary considerations on the crucial issue of whether he was in Fiji for work at all, let alone whether he was bitten while he was engaged in any work, or the injury was sufficiently associated with that.
[81] Judge MacLean and the Reviewer before him made no error in law in the finding that Mr Weal did not work while in Fiji. There was a factual consideration. This was ample evidence to found the conclusion that the injury was not work-related, and that the Corporation’s initial decision was clearly wrong.
Second alleged error of law – incorrect interpretation of s 28 of the Act
[82] The Judge held that “any place” for the purposes of s 28(1)(a) cannot be a country. Mr Beck submits it can. Mr Laurenson QC, correctly in my view, submits that the point is moot.
[83] Reference has already been made to the definition of “work-related personal injury” under s 28, and the requirement of employment. “Employment” is defined in the Act:13
(a) [employment] means work engaged in or carried out for the purposes of pecuniary gain or profit; and
(b) in the case of an employee, includes a period of paid leave, other than paid leave on the termination of employment.
[84] In my view, Judge MacLean correctly interpreted s 28(1)(a) as requiring the injury to be suffered at a time when someone is at a place for the purpose of employment, and in effect that a nexus must be established between the “place” and the “employment”. There was a lack of evidence in this regard. Even Mr Weal’s evidence that he was in Fiji for both holiday and employment purposes was insufficient because that did not establish whether he was at a place for the purpose of his employment, or on holiday, when he suffered the injury.
[85] Of course, if there was no work or employment being undertaken in Fiji, the correct approach under s 28(1)(a) is, as in this case, moot, and I agree with Mr Laurenson QC.
[86] Mr Laurenson QC also submitted that s 28(1)(a) should be construed “reasonably narrowly” and that is indicated by ss 28(1)(b) and (d), where the fact that someone is not “at work” is extended to cover circumstances where someone is having a break from work for a meal, or a rest or refreshment at the place of employment, travelling to or from work. It does not extend to a situation where someone is in a country outside of New Zealand for a nebulous mixture of holiday and employment purposes.
[87] The question of “place” is subordinate to the finding that Mr Weal was not working while in Fiji. It did not matter exactly where in Fiji he was bitten, and
where dengue fever began to manifest itself, given that he was not working.
13 Section 6.
[88] The question of how s 28(1)(a) may apply in other factual circumstances therefore does not arise. It would arise, perhaps, where someone was engaged for example in construction work in Fiji and seconded for that purpose for (say) six months. If that person was bitten, perhaps multiple times, and contracted dengue fever, the exact location when bitten and the disease contracted may not be provable but it might be established when broadly the mosquito bites occurred and the fever contracted still leaving the question of whether it was at work, whether on a construction site or while in residence associated with being in Fiji only for work, or in a weekend on an island. It seems anomalous if because of the inability to identify which mosquito bite caused dengue fever, the injury was not “work-related” if it reasonably may have been at work. This is not like an accident where the exact time and place are not in doubt.
[89] If it was likely that the mosquito bite was suffered while on a two week vacation during the period of secondment, that would represent a dislocation which would likely be fatal to establishing cover. There has to be sufficient nexus between the injury and the work, not necessarily that it be suffered while “at work” but s 28 of the Act does not provide much latitude. A mosquito bite which was suffered in the hour after work concluded may well, in the context of having been seconded to Fiji for the purpose, be work-related. These matters of distinction on which I do not express any final view are not the basis on which I resolve this application for special leave.
[90] In conclusion, I consider it is not seriously arguable that the relevant factual finding that Mr Weal could not establish on the balance of probabilities that he was involved in employment-related work when he suffered injury, could be subject to any serious challenge on appeal.
Third alleged error of law – admission of Dr O’Connor’s evidence
[91] Dr O’Connor was not able to be cross-examined. Mr Beck says the need for cross-examination was palpable. This was based on the allegation that the medical certificate which he signed dated 14 January 2004 appeared on its face to be false,
and could not have been signed on the date that it was purported to have been signed. This was the formal submission made on behalf of Mr Weal.
[92] The basis for the submission was that the medical certificate records an address for Mr Weal to which he says he did not move until December 2004. However, the evidence for the Corporation was that the electronic version of the claim form was received on 14 January 2004 and the medical certificate received on or about 14 January 2004.
[93] The Corporation clearly did receive the documents on 14 January 2004, and this is consistent with the decision advised to Mr Weal on 16 January 2004 when his claim was declined. While there was evidence regarding the address shown for Mr Weal on the medical certificate as opposed to the electronic claim form, there was no challenge that the medical certificate was received by the Corporation on or about 14 January 2004.
[94] The claim form is clearly admissible. It directly refers to Mr Weal holidaying in Fiji and is consistent with the hearsay evidence relating to Dr O’Connor, that Mr Weal told him he was holidaying in Fiji.
[95] Dr O’Connor’s evidence was simply a part of all the evidence relied on by the Reviewer and the Judges, and they were careful in conducting a comprehensive review. It cannot be said that the evidence of Dr O’Connor was so decisive of itself that it should not have been admitted. The statute allows the latitude for it to be given in evidence, it was relevant, and there was a proper explanation for Dr O’Connor not attending at the hearing. It was simply part of the evidence consistent with Mr Weal being on holiday. It was not the crucial part of the Corporation’s case, or the factual findings that Mr Weal did not work while in Fiji.
Fourth alleged error of law – rejection of Mr Weal’s evidence
[96] Mr Weal’s evidence was fully considered, and the Judge recognised the Reviewer had the advantage of sitting for several days and hearing Mr Weal and other witnesses, in what was plainly an assiduous review process.
[97] Mr Weal’s evidence was not excluded. The Judge not only upheld the finding of the Reviewer regarding Mr Weal’s reliability, but could scarce do otherwise. There was nothing in the Reviewer’s consideration of Mr Weal’s evidence that the Judge should manifestly have rejected. The Judge carefully reviewed all the evidence.
[98] The suggestion that the Corporation’s case came down to a technical analysis of legal employment relationships and corporate personalities which did not reflect the true position is equally unfounded. Mr Weal’s claims of who he was employed by, and then not employed by, were highly relevant considerations.
[99] Relevant also to the costs issue discussed below, Mr Weal submits that the Judge made an error of law in not addressing and coming to his own conclusions on the basis of the credibility findings and the irregularities in the evidence of Dr O’Connor that underlay those findings on which the Reviewer’s costs decision was based. However, it is plain that the Judge did review the evidence and the way the Reviewer reached his conclusions. The Judge is not bound to rehear all the evidence. That may be required in exceptional circumstances but it is not seriously arguable that the Judge made errors of law in upholding the decision to admit Dr O'Connor's evidence or reject Mr Weal’s evidence.
Fifth alleged error of law – refusal to award costs
[100] Mr Weal says the Judge made an error of law in refusing to disturb the decision to decline Mr Weal’s application for costs under s 148(2)(b) of the Act. This refusal is warranted if the Reviewer considered the applicant acted unreasonably in applying for review, and Mr Weal was held not to have acted reasonably. That is a matter of discretion.
[101] There was an adverse credibility finding against Mr Weal and the essence of the refusal to award costs was that Mr Weal must have known that he was not working while in Fiji and did not act reasonably in seeking a review. There is no tenable argument that the Judge made an error of law in upholding the Reviewer’s decision.
Sixth alleged error of law – entitlements appeal
[102] Mr Weal alleges delay in providing entitlements, and this relates to the review decision of 19 April 2007 which held there was no unreasonable delay in processing Mr Weal’s claim to entitlements.
[103] An issue of entitlements will only arise if cover has been granted to the injury in question, and the notion that there was an error of law in dismissing the entitlement appeal founders immediately on the fact that there is no cover.14
G. Conclusion
[104] None of the alleged errors of law are questions of law capable of bona fide and serious argument.
[105] The application for special leave to appeal to the High Court is refused.
[106] Costs are reserved. The Corporation should file a memorandum within five working days of receipt of this judgment and Mr Weal within five working days thereafter.
………………………………………….
Nicholas Davidson J
Solicitors:
Peter Sara, Dunedin
Meredith Connell, Auckland
Copy to counsel: DA Laurenson QC A Beck, Wellington
14 Section 67(a).
0
1
0