Weal v Accident Compensation Corporation [2016] NZACC 56 (7 March 2016)
Last Updated: 11 March 2016
IN THE DISTRICT COURT
AT <a name="JUDGMENTLOCATION">WELLINGTON[2016] NZACC 56 ACR 552/13 & ACR 206/07
UNDER
THE ACCIDENT COMPENSATION ACT 2001
IN THE MATTER OF
AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT ON A QUESTION OF LAW
BETWEEN
DOUGLAS WEALApplicant
AND
ACCIDENT COMPENSATION CORPORATIONRespondent
On the papers
at Auckland
Date:
7 March 2016
DECISION OF JUDGE G M HARRISON
Andrew Beck for the Appellant
Meredith Connell for the Respondent
Background
[2] Mr Weal lodged a claim with the Corporation on 14 January 2004 after consulting a doctor in New Zealand.
[3] The claim was initially declined because the claim form completed by Mr Weal’s doctor stated that the former was bitten whilst on holiday in Fiji. Later, in December 2004, after the appellant clarified that his claim was work-related, cover was granted.
[4] The Corporation then embarked upon a process of obtaining information relevant to establishing what entitlement was due to Mr Weal, cover having been granted. This was a complicated process, with Mr Weal being involved in a number of companies and different activities. Having obtained as much information as it could, the respondent decided that the injury was not work-related and therefore cover was revoked on 11 October 2006 pursuant to s 65 of the Act.
[5] Mr Weal challenged this decision which was heard by Reviewer TM Gresson who delivered a 38 page decision on 17 December 2013 upholding the Corporation’s decision.
[6] Mr Weal appealed to this Court and in a decision of 31 July 2015 Judge AN MacLean dismissed the appeal. Mr Weal now seeks leave to appeal to the High Court against that decision.
A work-related personal injury is a personal injury that a person suffers while he ... is at any place for the purpose of his ... employment ...
[19] “Employment” under s 6 is defined as:
Work engaged in or carried out for the purposes of pecuniary gain or profit.
[20] Cover can apply for an injury, as here, outside of New Zealand under s 22 if the claimant is “ordinarily resident in New Zealand when he suffers the personal injury and would have had cover if it had been suffered in New Zealand.
[21] Thus the key underlying issue to be determined, which was very much within the scope of the relevant review carried out by a Mr Gresson ... is whether or not the Court can be satisfied on the balance of probabilities that the evidence establishes a work-related personal injury.
[10] Having considered the evidence and several authorities relevant to the interpretation of “at any place” the Judge concluded:
[12] At [44] the Judge said:
[a] Section 65 was correctly applied.
There is a sufficiency of evidence supporting the finding that the appellant was not working in Fiji primarily because there is insufficient evidence of a defined “place” other than Fiji in general in which the personal injury occurred.
[c] There was a substantial changing of versions from the appellant and internal inconsistencies to justify the factual conclusions that the Reviewer arrived at.
The application for leave
[15] It is only if a point of law can be identified as arising on that issue that leave should be granted to appeal to the High Court. If no such point of law arises then it would be pointless granting leave on other issues even if points of law can be identified because an appeal could not succeed if the Judge’s fundamental determination was not overturned.
[16] The applicant defined his second question of law as “the Court’s interpretation of s 28 of the Accident Compensation Act 2001 was incorrect”.
[17] The applicant submits essentially that the decision of the Judge that Fiji could not be a “place” for the purposes of s 28(1)(a) was a narrow interpretation, required to avoid the floodgates opening, whereas the legislation should be interpreted in a generous and unniggardly way.
[18] The respondent submits that the Judge was correct to find that a country as a whole cannot be a “place” for the purpose of employment under s 28, at least in the context of a working holiday. The respondent noted the Judge’s finding that it was not possible to point to the specific time, and therefore the specific “place” where the injury occurred. It said this supported the Court’s conclusion that “the place” for the purpose of employment could not simply be Fiji.
[19] Plainly that must be so. Section 28(1)(a) provides that “a work-related personal injury is a personal injury that a person suffers while he or she is at any place for the purposes of his or her employment ...”. (Underlining added)
[20] Thus, the relevance of “any place” is that the person sustaining the injury must identify the place at which it occurred to establish that it occurred in the course of his or her employment.
[21] There is simply no dispute in this case that Mr Weal was unable to establish the place at which he was bitten by the mosquito to establish that it occurred in the course of his employment.
[22] That being so, his claim for cover must fail and no question of law can arise because the place at which any injury was sustained is a question of fact only.
[23] In my view, therefore, Mr Weal’s claim for cover can never succeed because he is unable to establish the place at which he was engaged in employment when the injury occurred. That being so, the remaining suggested questions of law cannot assist the applicant and I deal with them briefly.
[24] The first point of law raised was that the Court did not apply correctly the law relating to s 65 of the Act. That permits the Corporation to decide that its original decision granting cover was made in error and, in reaching that conclusion, it is entitled to take into account material not available to it at the time of its original decision. ACC v Bartels <a title="View Case" class="autolink_findcases_inserted" href="http://www.nzlii.org/nz/cases/NZHC/2006/939.html">[2006] NZHC 939; [2006] NZAR 680. For the Corporation to decide that its original decision was wrong is a question of fact. Here, after receiving further information from Mr Weal when considering the extent of his entitlement, the Corporation received information from him which led it to revoke its original decision granting cover. That is solely a question of fact and no issue of law arises.
[25] The next posed question of law was that the Court failed to exclude inadmissible evidence and reached conclusions that relied on that evidence. It also excluded evidence without a proper basis for doing so. This suggested point of law relates to the finding that Mr Weal was not engaged in employment at the time of his injury, he being there for personal and recreational purposes as well as work-related matters.
[26] Once again, this is a question of fact but is relevant only to whether he was engaged in work-related activity at the time of the injury and does not assist in establishing the place at which the injury occurred.
[27] Even if a point of law arises on this question, and I do not accept that it does, it could not succeed for the reasons given.
[28] The Reviewer declined to award the costs of the hearing before him to the applicant which the Judge confirmed as correct. Section 148(2)(

[29] It was plainly open to the Judge to accept the discretionary decision of the Reviewer that Mr Weal had not acted reasonably in seeking his review. No submission is made that the Reviewer took into account irrelevant material or failed to take into account relevant material in reaching his decision, and no point of law arises in that regard.
[30] The final question concerned delay in providing entitlements to Mr Weal, which arises out of the second appeal before the Judge, but, as he noted, that issue simply does not arise where the respondent’s decision declining cover is confirmed.
[b]Conclusion
G M Harrison
District Court Judge