Hastings v Accident Compensation Corporation [2019] NZHC 761 (9 April 2019)

Last Updated: 12 April 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-916 [2019] NZHC 761

BETWEEN	CARL JONATHAN HASTINGS DAVID SAUL BRISCOE AS EXECUTORS OF ESTATE OF McRAE Applicants
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	21 March 2019
Appearances:	B H Woodhouse and E M Bransgrove for the Applicants L M Hansen for the Respondent
Judgment:	9 April 2019

JUDGMENT OF CULL J

[1] This in an application for special leave to appeal the decision of the District Court, which upheld the decision of the Accident Compensation Corporation (ACC) to decline a claim for an asbestos-related condition.

[2] The applicants (Carl Jonathan Hastings and David Saul Briscoe as executors of the McRae Estate) seek special leave to appeal the decision of the District Court, given by Judge Walker in Estate of McRae v Accident Compensation Corporation.¹ Leave to appeal was refused by the District Court on 6 November 2018.²

[3] In November 2014, Mrs McRae was diagnosed with malignant mesothelioma. Mesothelioma is a fatal lung disease that is almost always caused by the inhalation of

¹ Estate of McRae v Accident Compensation Corporation [2018] NZACC 68.

² Estate of McRae v Accident Compensation Corporation [2018] NZACC 174.

HASTINGS v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 761 [9 April 2019]

asbestos fibres.³ Following an application, ACC declined her claim for cover for an asbestos-related condition on the basis that her exposure to asbestos was not work- related.

[4] The principal legal issue on which the applicants seek leave is whether the applicable standard of proof required for a claim under s 30(3) of the Accident Compensation Corporation Act 2002 (the Act) for workplace exposure to asbestos is on the balance of probabilities, or a lesser standard, to trigger s 60, requiring ACC to establish the disease was caused other than by the claimant’s employment.

[5] The applicants submit that once a claimant makes a claim to ACC under s 30(3) for an injury or disease referred to in Schedule 2, and provides some evidence of workplace exposure, s 60 applies.

[6] ACC opposes Mrs McRae’s application for special leave. ACC submits that the ground advanced is not capable of bona fide and serious argument and has no reasonable prospect of success, because s 30(3)(b)(i) requires that the claimant has been exposed to a Schedule 2 disease at work. Proof of workplace exposure is therefore required, on the balance of probabilities, before s 60 applies, as this Court has previously held. ACC further submits that the applicants are in effect challenging the factual findings, which is not a sufficient basis for leave to be granted.

[7] The threshold test in this Court is whether there is an arguable question of law to be determined on appeal.

Procedural history

[8] After her diagnosis of mesothelioma in November 2014, Mrs McRae lodged a claim for cover for mesothelioma in January 2015. On 16 February 2015, ACC declined her claim for cover for an asbestos-related condition on the basis that her exposure to asbestos was not work-related. The following day, ACC declined funding for Pemetrexed on the basis they had declined cover.

³ Estate of McRae v Accident Compensation Corporation, above n 2, at [1].

[9] Mrs McRae filed an application for the review of both these decisions in August 2015. ACC accepted the late lodging of the review application. The hearing took place in February 2016, and the reviewer made a decision on 11 May 2016 dismissing the application, stating:

I am not persuaded on the balance of probabilities, that Mrs McRae was exposed to asbestos in the course of her employment. ACC’s decision declining cover is correct. Therefore ACC’s decision declining to fund Pemetrexed is also correct.

[10] An application for appeal was filed in May 2016. Sadly, Mrs McRae died in October 2016.

[11] The appeal hearing was held at the District Court in September 2017. Judge Walker dismissed the appeal, finding that “the evidence, on the balance of probabilities [does] not establish that Mrs McRae was put at risk of being exposed to asbestos sufficient to bring about her health condition”; “a risk, or possibility of risk, from exposure to asbestos in her [Mrs McRae’s] working environment has not been established.”⁴ As such, s 30(3)(b) of the Act, which requires the claimant to be or have been in employment “that involves exposure... to, agents, dusts, compounds...” was not satisfied.

[12] The applicants applied to the District Court for leave to appeal that decision. Leave was declined by Associate Judge Christiansen in November 2018. The applicants now apply for special leave to appeal Judge Walker’s decision.

District Court decisions

Substantive decision dismissing appeal

[13] On appeal, Judge Walker canvassed the medical and expert evidence adduced by both parties, and ultimately concluded that the fact of workplace exposure to asbestos had not been established on the balance of probabilities.

[14] In terms of the law, both parties agreed that the first step under s 30(3)(a) was satisfied (that is, mesothelioma is an asbestos-related disease covered under Schedule

⁴ Estate of McRae v Accident Compensation Corporation, above n 1, at [175].

2 of the Act). Both parties also agreed that s 30(3)(b) requires the claimant, Mrs McRae, to prove on the balance of probabilities that they have been in employment which exposes them to risk of the disease. Once that is proved, the onus shifts to ACC as s 60 is engaged. The parties disagreed on whether Mrs McRae had established, on the balance of probabilities, that she had been exposed to asbestos during the course of her employment.

[15] Mrs McRae submitted that she believed she had been exposed to asbestos when working at Lombard House in Wellington, from 1968 to 1971. There was evidence that building material which often contained asbestos was present in the building prior to 1966, and was used in an “interior fit out” which took place in 1968. There was also evidence of asbestos in the lobby area of the building from 1995 to 2003. Mrs McRae submitted she had been exposed during the “fit out” that was undertaken while she was working there and/or as a result of a 1966 renovation that had occurred a couple of years prior to her starting there, but which would have brought asbestos dust into the working area.

[16] A key factor in the Judge’s decision was that, although it was accepted that Mrs McRae worked in Lombard House at some point, the evidence does not establish that Mrs McRae was put at risk of being exposed to asbestos during this time. Her Honour held that “[t]he only known information in respect to asbestos in any respect to the “fit out” at Lombard House, was a possibility only of some asbestos content in the malthoid bituminous fabric separator, specified as the damp proof course to separate timber from contact with the concrete.”⁵ The Judge concluded there was “no specific evidence in respect to any renovation that any dust, let alone asbestos dust, was created”,⁶ and held that Mrs McRae had not discharged the burden of proving on the balance of probabilities that she had suffered workplace exposure to asbestos.

Decision declining leave to appeal

[17] Associate Judge Christiansen declined the applicants’ leave to appeal in November 2018.⁷

⁵ Estate of McRae v Accident Compensation Corporation, above n 1, at [176].

⁶ At [176].

⁷ Estate of McRae v Accident Compensation Corporation, above n 2.

[18] Judge Christiansen rejected the applicants’ contention that ACC had to accept the claim unless it proved the mesothelioma was caused other than by Mrs McRae’s employment:⁸

Respectfully that is not a correct statement of the law and overlooks the requirement of s 30(3) that exposure to asbestos in the work place needs to be established. It follows therefore that the requirement to consider s 60 does not arise if the Corporation is not satisfied there has been a work place exposure.

[19] The Judge agreed with the process adopted by Judge Walker, who was satisfied that workplace exposure to asbestos could not be established on the balance of probabilities. There was therefore no need to apply s 60. If s 60 is to apply, there has to be proof of workplace exposure. It is not correct to assert that ACC was required, and failed, to establish that Mrs McRae’s mesothelioma was caused by something other than workplace exposure.⁹

[20] The Judge dismissed the application for leave to appeal, concluding:¹⁰

It seems to this Court that the primary basis of the application for leave concerns a challenge of the factual findings of the Judge that there was no work place exposure. As such there is not a sufficient basis for leave to appeal to be granted.

Special leave to appeal

[21] Section 162 of the Act provides the relevant law when appealing a decision of the District Court to the High Court:

• (1) A party to an appeal who is dissatisfied with the decision of [the District Court] as being wrong in law may, with the leave of the District Court, appeal to the High Court.
• (2) The leave of the District Court must be sought within 21 days after

the District Court’s decision.

(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
(4) The special leave of the High Court must be sought within 21 days after the District Court refused leave.

⁸ Estate of McRae v Accident Compensation Corporation, above n 2, at [34].

⁹ At [45].

¹⁰ At [48].

(5) [The High Court Rules and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.]

[22] The Act only permits an appeal on a question of law. Dunningham J held in Gilmore v Accident Compensation Corporation that a question of law properly arises in the following circumstances:¹¹

A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is the matter for the fact-finding Court unless clearly unsupportable. Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law.

[23] To obtain special leave, the applicants must identify a question of law that is also capable of bona fide and serious argument.¹² Demonstrating there is an arguable error of law is not determinative in itself; the Court must still consider whether there is a question of sufficient public or private interest to outweigh the cost and delay of a further appeal.¹³ As the High Court observed recently in Atapattu-Weerasinghe v Accident Compensation Corporation:¹⁴

Special leave may only be granted to bring a second appeal on a question of law. Leave to bring a second appeal in this fashion is not lightly granted partly because leave has already been declined once in the District Court, and partly because the role of this Court on a second appeal is not broadly corrective. Rather, it is focused on issues of principle and matters of importance beyond the interests of the parties in dispute.

The proposed question of law for appeal

[24] The applicants seek special leave to appeal on the following question of law:¹⁵

Once a claimant makes a claim to ACC under s 30(3) for an injury referred to in Schedule 2 and provides some evidence of workplace exposure, do the provisions of s 60 apply requiring the Corporation to establish that the disease

¹¹ Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [28] (footnotes omitted).

¹² Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

13. Gilmore, above n 11, at [5] and [29]; and Gaskin v Accident Compensation Corporation [2018] NZHC 3190 at [34].
14. Atapattu-Weerasinghe v Accident Compensation Corporation [2017] NZHC 142 at [2]- [3] (footnotes omitted).

¹⁵ Emphasis added.

was not a Schedule 2 disease or was caused other than by her [the claimant’s] employment?

[25] Counsel for the applicants submit that once a claimant has established they have a Schedule 2 disease, and provides some evidence that their employment involved exposure to “agents, dusts, compounds” known to cause that disease, then the burden shifts to ACC to establish that the personal injury has a non-employment related cause. As ACC provided no contra-evidence to suggest that the more likely cause of Mrs McRae’s mesothelioma was unrelated to employment, the applicants submit that ACC did not fulfil its investigative duties imposed under s 30(3A) of the Act, nor has it established that Mrs McRae’s mesothelioma had “a cause other than her employment” as required by s 60.

[26] Thus, they submit that the Judge erred in law by not “considering or applying a pivotal provision”, namely, s 60. As a result, the correct interpretation of the interrelationship between ss 30(3) and 60 has not been considered.

[27] Counsel for ACC submits that the principal legal issue as outlined above is not seriously arguable. Counsel submits the District Court was correct to find that workplace exposure to asbestos was required to be established on the balance of probabilities as there is no other applicable standard. To the extent the applicants imply that evidence may be other than credible, relevant or probative, counsel submits this is flawed and not seriously arguable.

Relevant legislation

[28] The relevant statutory provisions are as follows:

30. Personal injury caused by work-related gradual process, disease, or infection

(1) Personal injury caused by a work-related gradual process, disease, or infection means personal injury –

(a) suffered by a person; and

(b) caused by a gradual process, disease, or infection; and

(c) caused in the circumstances described in subsection (2).

(2) The circumstances are –

• (a) the person –

(i) performs an employment task that has a particular property or characteristic; or

(ii) is employed in an environment that has a particular property or characteristic and

(b) the particular property or characteristic –

(i) causes, or contributes to the cause of, the personal injury; and

(ii) is not found to any material extent in the non- employment activities or environment of the person; and

(iii) may or may not be present throughout the whole of the person’s employment; and

(c) the risk of suffering the personal injury –

(i) is significantly greater for persons who perform the employment task than for persons who do not perform it; or

(ii) is significantly greater for persons who are employed in that type of environment than for persons who are not.

(3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is –

(a) of a type described in Schedule 2; and

(b) suffered by a person who is or has been in employment –

(i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or

(ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury.

(3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense.

(4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c).

...

60 Decision on claim for Schedule 2 injury

The Corporation may decline a claim that a personal injury is a work- related personal injury of a kind described in section 30(3) only if the Corporation establishes that –

(a) the person is not suffering from a personal injury of a kind described in Schedule 2; or

(b) the person’s personal injury has a cause other than his or her employment.

Discussion

[29] At this special leave hearing, the applicants advanced two alternative propositions. The first was whether a claimant, who provides some evidence of workplace exposure under s 30(3), triggers the provision of s 60 requiring ACC to establish the disease was not a Schedule 2 disease, or was caused other than by the claimant’s employment. On this basis, the applicants submit all that is required of a claimant is to point to the exposure at the workplace and the onus then shifts to ACC to investigate the claim under s 60. The applicants argue that the claimant is not required to produce evidence on the balance of probabilities.

[30] Alternatively, the applicants contend that in this case Mrs McRae, the claimant, did provide evidence and the evidence did meet the balance of probabilities under s 30(3). Ms Bransgrove for the applicants in reply pointed to Professor Glass’ evidence where he opined that it was highly probable that Mrs McRae was exposed to asbestos dust in 1968 during the “interior fit out”, because the asbestos in the building had been removed in 1966 and there would have been a level of asbestos still in the atmosphere.

[31] I will deal with each of those points in turn.

Section 30(3) threshold of evidence

[32] The substantive issue is whether s 30(3) requires the claimant to satisfy, on the balance of probabilities, that she was exposed to asbestos at work in order for s 60 to be engaged. The applicants submit there is a presumption that if there is a Schedule 2 disease present (as here), and there is “some evidence” the claimant may have been exposed to asbestos through work, then s 60 is engaged. ACC, however, submits that
the claimant has to satisfy, on the balance of probabilities, that she was exposed to asbestos at work before s 60 is engaged.

[33] As is evident, s 30(3) does not require causation.¹⁶ Section 30(3) does require, however, that the claimant has been in employment that involves exposure to agents, dusts, or compounds that contain asbestos (s 30(3)(b)(i)). The applicants rely on Priddle v Accident Compensation Corporation, particularly the following paragraphs, to submit that when s 30(3) applies there is a presumption of cover:¹⁷

It is significant that s 30(4) excludes not only causation under s 30(1)(c) but also under subs (1)(b). As a consequence there is no requirement for a person suffering from a Schedule 2 occupational disease to establish or prove that the disease, the personal injury, was caused by a gradual process disease or infection, provided it is an occupational disease listed in Schedule 2.

...

Such an interpretation is also consistent with the saving provision for the Corporation, s 60. Section 60 provides that the Corporation may decline a claim based on a Schedule 2 injury, but only if the Corporation establishes either that the person is not suffering from the injury or the injury had a cause other than their employment... the Corporation must go further and prove that the disease was caused other than by employment. Again the test is different.

[34] Priddle is authority for the proposition that if there has been workplace exposure to a Schedule 2 disease, the claimant does not have to prove that that exposure caused the mesothelioma, because the scientific evidence of that causation has already been well-established.¹⁸ However, Priddle does not stand for the proposition that once a claim is made under s 30(3)(b)(i) that workplace exposure may have occurred, there is a presumption of cover. In other words, there is no presumption of workplace exposure under s 30(3)(b)(i). This issue was canvassed in Bird v Accident Compensation Corporation.¹⁹

16. See s 30(4) and Priddle v Accident Compensation Corporation CA223/05, 19 October 2006 at [36].

¹⁷ At [34] and [41] (emphasis added by counsel).

¹⁸ At [34]–[36]; and Maddren v Accident Compensation Corporation [2018] NZACC 127 at [81].

¹⁹ Bird v Accident Compensation Corporation [2011] NZACC 26.

[35] Judge Ongley in Bird v Accident Compensation Corporation referred to Priddle and reinforced the position that there must be proof of workplace exposure under s 30(3). The Judge said:²⁰

The application of the relevant sections was considered in Priddle v ACC CA 223/05 in which the Court held that the comparative risk requirements of s 30(2) do not apply in the case of Schedule 2 injuries. All that is required is proof of workplace exposure.

[36] In Bird, the Judge found the logical consequence of the applicant’s submission would be that it is enough to satisfy s 30(3)(b)(i) if someone is found to be suffering from mesothelioma, provided they have been in employment at some stage. This amounts to a presumption of workplace exposure. The Judge was not convinced by this argument, for the following reasons:²¹

That argument makes redundant the requirement of “suffered by a person who is or has been in employment involving exposure”. In ordinary language “Employment involving exposure” refers to employment-related exposure. It could possibly bear the meaning urged by Mr Miller, which is more akin to employment coinciding with exposure, but the purpose of s 30(3) and Schedule 2 is quite obviously to cover work related diseases. Schedule 2 has the heading “Occupational diseases” and all the references in the Act to Schedule 2 refer to work related or occupational diseases or personal injury.

The argument is linked to the absence of the probative requirements for ordinary work place injuries; that is that the appellant had a greater risk from the workplace than from non-work activity. The appellant argues that when that test is removed, as it is in s 30(3), all that has to be shown is some risk, not specifically a workplace risk. But the Court of Appeal in Priddle (supra) decided that s 30(3) was not an extension of the general provisions for work- related gradual process injuries. Section 30(3) stands on its own and meaning must be given to the expression “employment involving exposure”.

...

The expression employment involving exposure is descriptive of employment that has some discernible element of probable exposure in the employment task or environment. If there had been asbestos dusts, for example from a grinding process or disruption of asbestos fabric, then cover would be available without proof of causation, subject to a reverse onus in s 60.

The evidence touches only on potential exposure and is not a basis for cover.

²⁰ Bird, above n 19, at [9] (emphasis added).

²¹ At [20]-[21] and [25]-[26].

[37] The Judge found that there must be evidence to the standard of the balance of probabilities.²² I cannot uphold the applicants’ submission that Bird is distinguishable on the facts. It is both relevant and persuasive. The facts of Bird are similar to the facts in the present case. Although in Mrs McRae’s case there has been a memorable event, that being her work at Lombard House and the fact of the renovations and “fit out” that took place, there is no evidence that asbestos-containing materials were exposed to Mrs McRae. The evidence at its highest is that there was a potential for exposure but not proof of actual exposure in Mrs McRae’s workplace.

[38] To succeed on this ground, the applicants need to show that the District Court’s judgment on s 30(3) is wrong, before this Court approves the question of law to clarify the interrelationship between s 30(3) and s 60. I note that counsel for the applicants agreed at the District Court hearing that there needs to be evidence on the balance of probabilities that the person was in employment, which exposed him or her to the risks.

[39] I also find there is some force in Ms Hansen’s submission that there is a further consequence if the applicants’ position was upheld. It would mean that a mere assertion by a claimant would trigger s 60 of the Act and ACC would be required to disprove all cases, even those which may be purely speculative. Section 30(3) of the Act requires there to be both a Schedule 2 disease and workplace exposure before the onus shifts to ACC under s 60. The applicants have not established workplace exposure here. If the applicants’ interpretation is upheld, it is not consistent with most other areas of civil law where it is the plaintiff, or applicant, who has the burden of establishing, on the balance of probabilities, the material fact of his or her cause of action or claim.²³

[40] I am not persuaded that the Judge was in error in the way in which she interpreted s 30(3) and applied it to the facts in this case. For that reason, I am not persuaded that a serious question of law capable of bona fide and serious argument arises.

²² Bird, above n 19, at [8].

23. Matthew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [2.3.2]; see, for example, the insurance context: Bligh v Earthquake Commission & IAG [2018] NZHC 2102 at [26].

Alternatively, the evidence met the s 30(3) threshold

[41] This ground was raised late in the hearing and is the corollary of the applicants’ principal submission. If Mrs McRae provided evidence that on the balance of probabilities reached the threshold under s 30(3) that she was exposed to asbestos in the workplace, the question for this Court will be whether the District Court Judge made an error of law in finding that the evidence did not satisfy the threshold test that Mrs McRae was exposed to asbestos in Lombard House, her place of work.

[42] Ms Hansen for ACC submits that this ground deals with the Judge’s assessment of the evidence. Unless the Judge reached the Edwards v Bairstow test for an error of law, this ground must fail.

[43] In Edwards v Bairstow, Lord Radcliffe outlined the two indicators of error of law. The second is relevant:²⁴

If the case contains anything ex facie which is bad law and which bears upon the determination, it is, obviously, erroneous in point of law. But, without any such conception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene ... I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictor of the determination made, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.

[44] As the Court of Appeal has more recently explained in JO v Chief Executive of the Ministry of Business, Innovation and Employment, Edwards v Bairstow is authority for the proposition that it is an error of law for a fact-finding decision-maker to make an unsupported or perverse finding of fact – that is, a finding unsupported by evidence or one that is inconsistent or in conflict with the evidence.²⁵

[45] ACC accepted that it was its responsibility under s 30(3A) of the Act to investigate each claim made under s 30(3). In fulfilling this requirement, ACC gathered medical evidence and information from Mrs McRae and referred this

²⁴ Edwards v Bairstow [1955] UKHL 3; [1956] AC 14 (HL) at 36.

25. JO v Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZCA 482 at [17].

information to Dr Monigatti, a specialist in occupational health. Dr Monigatti also garnered a number of reports in relation to asbestos. After assessing this information and analysing the applicants’ building reports, Dr Monigatti concluded there was insufficient evidence of workplace exposure. The District Court Judge, after comprehensively reviewing the evidence from both parties, preferred Dr Monigatti’s evidence and found there was insufficient evidence to satisfy s 30(3).

[46] Although the Court of Appeal has recognised in ACC v Ambros that a “tactical burden” does shift to ACC in instances of causation,²⁶ the question of causation does not arise here. It is a question of whether workplace exposure has been established, a fact that needs to be ascertained by the Judge on the evidence.

[47] I do not accept that the Judge has made an error of law. On the evidence as set out in her judgment, it was open to Judge Walker to find that, on the balance of probabilities, the evidence did not satisfy the Court that Mrs McRae’s mesothelioma was caused by her exposure to asbestos in the workplace. There were two counterbalancing factors, which the Judge took into account.

[48] The first was that the renovations removing asbestos had occurred in 1966, two to three years before Mrs McRae commenced work in Lombard House. On the expert evidence before the Judge, it was open to her to reject Professor Glass’ view that it was highly probable that residual asbestos from the 1966 renovation was still in the air and may have led to Mrs McRae’s exposure to asbestos. The countervailing view from Dr Monigatti was persuasive and it was open to the Judge to prefer his evidence.

[49] The second factor was Mrs McRae’s acknowledgement that her exposure could have been at her employment or while she was undertaking renovations of houses. One of those houses did not have asbestos, and evidence was produced before the Court to show that it was asbestos-free. However, that did not deal with the other houses and ceilings into which Mrs McRae had gone while undertaking home renovations herself.

²⁶ Accident Compensation Corporation v Ambros [2007] NZCA 304 at [63].

[50] Associate Judge Christiansen, in his decision declining leave, found that the applicants were in effect challenging the factual findings and that was not a sufficient basis for leave to be granted.²⁷ I have reached the same conclusion. The evidence supplied by Mrs McRae asserts that the internal partition renovation in 1968 is likely to have exposed her to asbestos when she was working in Lombard House during that time. Although the Wellington City Council records and the building consents show that there were renovations carried out in 1966 and 1968, there has been no identification in 1968 that asbestos was present or, indeed, raised an issue. The only asbestos still present in Lombard House in 1968 was contained in the walls in the lobby of Lombard House and they had been sealed to ensure that asbestos was contained and not hazardous.

[51] I acknowledge, as the applicants submit, that the current regulations did not apply in the 1960s, but I consider there needs to be more than an assertion that there was workplace exposure during the time of a partition renovation that was the source of the exposure of asbestos. It was not the only potential source. Despite the applicants’ submissions that s 30(3) is satisfied where a claimant can point to a time at which asbestos may have been present, and that it is ACC’s responsibility under s 30(3A) to make inquiry and under s 60 to rule out any alternative source, the initial starting point under s 30(3) must be more than just a “potential” workplace exposure.

[52] In this case, the three year gap between the removal of the asbestos material from Lombard House and the possibility of exposure in Mrs McRae’s privately-owned homes were factors that led Judge Walker to conclude that the threshold in s 30(3) was not met. I concur with the Judge’s finding that the evidence did not establish, on the balance of probabilities, that it was workplace exposure, and the possibility of exposure is not an appropriate standard to engage the section. I also reject the applicants’ submissions that once a claimant suggests that asbestos may have been present in the workplace in a claim under s 30(3), ACC must then rule out any alternative source of asbestos exposure under s 60. The threshold under s 30(3) must be more than just a “potential” workplace exposure. I am unable to uphold the applicants’ submission.

²⁷ Estate of McRae v Accident Compensation Corporation, above n 2, at [48].

Conclusion

[53] The role of this Court in determining a special leave application is not to decide the merits of the issue but to “determine whether there is an issue of law which crosses the threshold of arguability”.²⁸ I am unable to find that there is a question of law, capable of serious and bona fide argument, on either of the two grounds advanced by the applicants and I decline special leave.

Result

[54] The application to grant special leave to appeal is declined.

Costs

[55] If counsel are unable to agree on costs, counsel are to file memoranda within 21 days of this decision.

Cull J

Solicitors:

John Miller Law, Wellington for the Applicants

²⁸ Accident Compensation Corporation v Hawke [2013] NZHC 2982 at [24].