ACCIDENT COMPENSATION CORPORATION V WARREN MCENTEER HC WN CIV 2008-485-1800 [2009] NZHC 361 (26 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                    CIV 2008-485-1800

              UNDER                        section 162 of the Injury Prevention
                                           Rehabilitation
and Compensation Act 2001


              BETWEEN                      ACCIDENT COMPENSATION
                                   
       CORPORATION
                                           Appellant

              AND                          WARREN MCENTEER
                                           Respondent


Counsel:      P F Gorringe for Appellant
              P J Radich for Respondent

Judgment:     26 March 2009


                      JUDGMENT OF SIMON FRANCE J
               (Application for leave to appeal to
Court of Appeal)



[1]    This is an application under s 163 of the Injury Prevention, Rehabilitation and
Compensation Act 2001
for leave to appeal to the Court of Appeal.                     The
requirements of s 163 are that there be a question of law. The
parties accept that the
fuller requirements are those identified in Waller v Hider  [1998] 1 NZLR 412.


[2]    Having regard to the fact that leave is not opposed, and having regard to
Court of Appeal's observations in Hornby v ACC
 [2009] NZCA 33, I give leave on
the following question:

       When assessing, under s 32(1)(c) of the Injury Prevention, Compensation
       and
Rehabilitation Act 2001, whether a personal injury caused by treatment
       is "a necessary part or ordinary consequence of the
treatment" and where
       that treatment is an operation, is treatment to be taken to be the operation
       that was thought
to be needed, or the operation that was needed once the
       nature of the patients illness became apparent during the operation?



ACCIDENT COMPENSATION CORPORATION V WARREN MCENTEER HC WN CIV 2008-485-1800 26
March 2009

[3]     The parties should confer
on a case stated which should be submitted to me
for approval. That may include submissions on the wording of the question of law.




                                                             _________________________
                                     
                                    Simon France J

Solicitors:
P F Gorringe, Barrister, PO Box 7098, Hamilton, email: [e-mail]
P J Radich, MinterEllisonRuddWatts, PO Box 2793, Wellington
email: [e-mail]