IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2018-404-001087
[2018] NZHC 2769	

IN THE MATTER OF	An intended appeal under s 162 of the Accident Compensation Act 2001	
BETWEEN	MAYBELLE KAPETA MATTHEWS
Applicant	
AND	ACCIDENT COMPENSATION CORPORATION
Respondent	

Hearing:	19 September 2018; 11 October 2018	
Counsel:	A C Beck for Applicant
D K L Tuiqereqere and A P Pearce for Respondent	
Judgment:	25 October 2018	

JUDGMENT OF COLLINS J

Introduction

[1]	Ms Matthews applies for special leave to appeal to this Court a decision of Judge Mathers delivered in the District Court.1 In her decision, Judge Mathers dismissed an appeal by Mr Aria who, at the time was the husband of Ms Matthews. Mr Aria had appealed a decision of the Accident Compensation Corporation (ACC) declining Mr Aria’s application for cover under the Accident Compensation Act 2001 (the Act).

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

MATTHEWS v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2769 [25 October 2018]

[2]	Mr Aria was killed in a boating accident in 2016. That accident was not related to his claim for cover under the Act. Mr Aria died intestate. At the outset of the hearing  before  me  on  19  September  2018,  I  sought  further  submissions  on   Ms Matthews’ standing to pursue the appeal on behalf of her late husband. Counsel have now filed further submissions, the effect of which is that ACC does not take issue with Ms Matthews being substituted for her late husband as the appellant in this proceeding. I therefore make orders to that effect pursuant to r 4.50 of the High Court Rules 2016.

Background

Injuries and medical history

[3]	In 1974, Mr Aria was involved in a motorcycle accident that caused an injury to his right leg. He was hospitalised for three to six months at the time, and required surgery to his popliteal artery and skin grafting. Following surgery, Mr Aria could not fully extend his right knee, and his right ankle was held in an equinus — a condition that limits the ability to bend the foot upward towards the leg. Mr Aria was not employed at the time of the accident.

[4]	Notwithstanding that he suffered from a limp, Mr Aria began employment at a meat processing plant in 1975. He later trained as a meat boner and continued employment in that line of work until May 2008.

[5]	In April 2007, Mr Aria was bitten by an insect on his right leg. Ulcers then developed on this leg. In May 2008, Mr Aria was admitted to Middlemore Hospital, where an ultrasound revealed that his popliteal artery was blocked and there was little alternative circulation. Bypass surgery was carried out in July 2008 in an attempt to overcome the obstruction, but unfortunately it failed. In September 2008, further bypass surgery was successfully carried out. After the second surgery, the ulcers on Mr Aria’s leg fully healed, but the knee flexion deformity — inability to bend the knee
— became worse.

ACC applications and proceedings

[6]	Mr Aria was paid weekly compensation in relation to the 1974 injury from May 2008 until December 2009, when it was realised that the payment had been made in error because Mr Aria had not been employed at the time of his injury. ACC relied on the approach adopted by the District Court in Giltrap v Accident Compensation Corporation,2 which was later affirmed by the High Court in Vandy v Accident Compensation Corporation.3 It is accepted that this represents the correct approach.

[7]	However, because Mr Aria had also suffered the 2007 injury ACC investigated whether he would have been entitled to weekly compensation as a result of that injury. In November 2015, ACC concluded that he would have been so entitled, but not after December 2009, when payments ceased, because the 2007 injury had fully healed by that time. This investigation only occurred after Mr Aria sought review of the decision to revoke his weekly compensation and later appealed the review decision to the District Court.

[8]	Mr Aria then sought to review the decision that he was not entitled to weekly compensation after December 2009 in relation to the 2007 injury. On 16 February 2016, the reviewer confirmed the decision by ACC. Mr Aria appealed to the District Court. On 11 April 2017, Judge Mathers dismissed Mr Aria’s appeal, agreeing with the conclusions reached by the reviewer. On 17 May 2018, Judge Harrison declined an application for leave to appeal to this Court.4

Special leave to appeal

[9]	Section 162 of the Act permits a party to appeal a decision of the District Court to this Court on a question of law, if either leave is granted by the District Court or special leave is granted by this Court. To obtain special leave, the applicant must identify an error of law that is capable of bona fide and serious argument.5 Demonstration of an arguable error of law is not determinative by itself, as the Court

2	Giltrap v Accident Compensation Corporation [2006] NZACC 141.
3	Accident Compensation Corporation v Vandy [2011] 2 NZLR 131 (HC).
4	Aria v Accident Compensation Corporation [2018] NZACC 73 (DC).
5	Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation
HC Wellington AP266/00, 6 July 2001.

must still consider whether there is a question of sufficient public or private interest to outweigh the cost and delay of a further appeal.6 That is unlikely to be the case where questions of fact are merely dressed up as questions of law. There must typically also be a reasonable prospect of success on appeal.7

Grounds of proposed appeal

[10]	Mr Beck, counsel for Ms Matthews, submitted that Judge Mathers failed to apply the law of causation in two respects:

(1)	First, he submitted the Judge did not consider whether Mr Aria would not have been incapacitated but for the 2007 injury. He submitted it was not necessary that the 2007 injury was the sole cause of incapacity and that it would be sufficient if it was a contributing factor.

(2)	Second, the Judge did not apply the evidentiary burden of proof established in Thompson v Accident Compensation Corporation.8

[11]	There is no dispute that issues of causation raise questions of law.

[12]	In the present case, the relevant statutory provisions are cl 32 of Schedule 1 and s 103 of the Act, which provide:

32	Corporation to pay weekly compensation for loss of earnings to claimant who was earner

(1)	The Corporation is liable to pay weekly compensation for loss of earnings to a claimant who—

(a)	has an incapacity resulting from a personal injury for which he or she has cover; and

(b)	was an earner immediately before his or her incapacity commenced.

…

6	Gilmore v Accident Compensation Corporation [2016] NZHC 1594.
7	Kenyon v Accident Compensation Corporation HC Wellington AP258/00, 19 December 2001.
8	Thompson v Accident Compensation Corporation [2015] NZHC 1640, [2015] NZAR 1163 at [39].

103 Corporation to determine incapacity of claimant who, [at time of personal injury, was earner, on unpaid parental leave, or recuperating organ donor

(1)	The Corporation must determine under this section the incapacity of—

(a)	a claimant who was an earner at the time he or she suffered the personal injury:

…

(2)	The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.

(3)	If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment.

…

[13]	Because I am granting the application for special leave, it is not appropriate for me to delve in any depth into the facts and legal issues raised by the application for special leave to appeal. Suffice for present purposes to record that Judge Mathers appears to have focused on the fact that the ulcers had healed, without considering in much depth the implications of the exacerbated knee and ankle deformities. I am satisfied that, with respect to those injuries, this case does raise an arguable question of law involving causation, namely whether aggravation of a pre-existing condition acts as an absolute bar to causation.9

[14]	I believe there are two questions of law that this Court should address, namely:

(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?

9	See Johnston v Accident Compensation Corporation [2010] NZAR 673 (HC) at [26]–[27]; and Hornby v Accident Compensation Corporation HC Wellington CIV-2008-485-763, 10 September 2008 at [28]. Compare W v Accident Compensation Corporation [2018] NZHC 937, [2018] NZAR 829 at [60] and [62].

(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)?

[15]	Costs in relation to the special leave application are reserved and will be determined in conjunction with the appeal.

D B Collins J

Solicitors:
Hazel Armstrong Law, Wellington for Applicant Medico Law Ltd, Auckland for Respondent