Accident Compensation Corporation v Miller

[2013] NZCA 141

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA311/2012
[2013] NZCA 141

BETWEEN  ACCIDENT COMPENSATION CORPORATION
Appellant

AND  KENNETH MILLER
Respondent

Hearing:         19 February 2013

Court:             Stevens, French and Ronald Young JJ

Counsel:         B A Corkill QC and J G Roberts for Appellant
J P Miller and K M Eckersley for Respondent

Judgment:      9 May 2013 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe first question posed by the case stated is:

“Was the High Court erroneous in law when it determined that where the Corporation has been paying compensation, stops it and later it is held that the compensation should have continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed?”

This question is answered “yes”.

The second question posed by the case stated is:

“Was the High Court erroneous in law in determining that such an outcome is not limited to situations where the Corporation is at fault in relation to a suspension decision?”

This question is answered “no”.

CThe case is referred back to the High Court to be dealt with in accordance with the principles set out in this judgment.

DThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Factual background  [7]
Relevant legislation  [16]
District Court judgment  [18]
High Court judgment  [26]
Submissions of the parties  [31]
Discussion  [38]
Our answers to the questions of law posed by Simon France J          [51]
Where to from here?  [58]

Submissions of the parties  [62]
Our view  [67]

Result and costs  [69]

Introduction

1. This appeal concerns the circumstances in which the Accident Compensation Corporation (the Corporation) is required to pay interest on late payments of compensation.  The case has an unusual history.  Compensation was first paid to Mr Miller in 1974 when he suffered what was thought to be a workplace injury.  In 1977 Mr Miller suffered another injury, also thought to have been a workplace injury.  Investigations into the causes of the injuries continued.  Later the payments of weekly compensation were stopped in 1978 when all the information (supported by two medical reports) before the Corporation suggested that the incapacity was caused by disease rather than workplace injury.  Between 1993 and 1994 the Corporation received two medical reports stating that Mr Miller did not have a disease affecting his back.  However, payments of weekly compensation were not reinstated until 2003 following a decision by the Accident Compensation Appeal Authority (the Authority).[1]

   [1]      Miller v Accident Compensation Corporation ACA 88/95, 23 April 2003.

2. The Authority determined that Mr Miller’s incapacity was due to a combination of disease and workplace injury.  As a result, Mr Miller was entitled to weekly compensation which should have been paid continuously since 1974.  Mr Miller was paid backdated compensation accordingly.  The issue before us is whether he is entitled to interest on that payment pursuant to s 114 of the Accident Compensation Act 2001 (the 2001 Act).

3. In the District Court, Judge Ongley held that Mr Miller was not entitled to receive interest.[2]  Leave to appeal to the High Court was given on the following question:[3]

   Was the decision reached in the District Court erroneous in law in light of the conclusion reached in the subsequent Court of Appeal decision of ACC v Kearney?

In the High Court, Simon France J answered this question “yes”.  However, the Judge went further and concluded that the effect of the affirmative answer was that Mr Miller was entitled to interest backdated to 1 July 1992, being the first date upon which a claimant became entitled by statute to claim interest on late payments of compensation.[4] 

[2]Miller v Accident Compensation Corporation DC Wellington 298/2008, 18 December 2008.

[3]      Pursuant to s 162 of the Accident Compensation Act 2001 [the 2001 Act].

[4]Miller v Accident Compensation Corporation HC Wellington CIV-2011-485-1702, 16 December 2011 at [43].

1. Simon France J then granted leave to appeal to this Court[5] by way of case stated on the following questions:

   (a)Was the High Court erroneous in law when it determined that where the Corporation has been paying compensation, stops it and later it is held that the compensation should have continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed?

   (b)Was the High Court erroneous in law in determining that such an outcome is not limited to situations where the Corporation is at fault in relation to a suspension decision?

   [5]Pursuant to s 163 of the 2001 Act.

2. These questions raise for determination first an issue of statutory interpretation concerning s 114 of the Act (and its predecessor sections) and secondly an assessment of the decision of this Court in Accident Compensation Corporation v Kearney.[6]  The answers to the specific questions posed by Simon France J require us to interpret s 114 in the light of its purposes and the statutory context.

   [6]      Accident Compensation Corporation v Kearney [2010] NZCA 327.

3. Our conclusions on the law mean that certain factual aspects will need to be revisited. For this reason it will be necessary for us to determine whether the case should be referred back to the High Court or the District Court for determination of factual issues consequent upon our conclusions on the law.

Factual background

1. On 20 August 1974 and 10 June 1977 Mr Miller sustained lumbar back injuries in the course of his employment.  He was unable to work and began receiving weekly compensation.  Mr Miller’s initial cover was under the Accident Compensation Act 1972.  Under that legislation, ongoing cover could be declined if the claimant’s current condition was “caused exclusively by disease, infection, or the aging process”.[7]  It seems that the Corporation assumed initially that this provision did not apply and that Mr Miller was entitled to weekly compensation.  In 1978 the Corporation conducted a review of Mr Miller’s case, which included seeking specialist reports to assess x-ray films and other initial medical information on the file.

   [7]      Accident Compensation Act 1972, s 2 (emphasis added).

2. In September 1978 Mr Miller was informed by the Corporation that this compensation would cease because his incapacity was solely due to the non-injury disease of ankylosing spondylitis, a type of musculo-skeletal disease.  This assessment was based on a specialist report dated 17 August 1978 from an orthopaedic surgeon, Mr Parke.  That report stated:

   I do not consider that his continued incapacity is related to the affect of the temporary aggravation of his back condition which arose as a result of the incident occurring on 10 June 1977.  I consider that he has recovered from whatever aggravating on his pre-existing condition occurred as a result of that accident.

3. In November 1978 Mr Miller sought a second opinion from another orthopaedic surgeon, Mr King.  That report reached the same conclusion as the opinion given to the Corporation by Mr Parke.  There matters rested until late 1992 when Mr Miller sought an opinion from another specialist orthopaedic surgeon, Mr Baylis.  The report is dated 1 December 1992.  Referring to x-rays taken of Mr Miller’s thoracic spine it states:

   The radiologist concludes “In particular, there is no evidence of ankylosing spondylitis or spondylo-arthropathy.”  Xrays were also taken of the sacro-iliac joints which demonstrated sclerosis affecting the ilial borders of the sacro-iliac joints.  The conclusion again is that “There is no ankylosis seen in either joint.”

4. Mr Baylis concluded:

   We have clear clinical and radiological evidence that this man does not have a disease process affecting his back.  He has normal chest expansion, normal costo-vertebral joint and intact sacroiliac joints.

5. Between March and June 1993, Mr Miller made a renewed claim based on Mr Baylis’ report.  There is some disagreement between the parties as to when the Corporation received this report.  In submissions filed following the hearing of this appeal, the Corporation has indicated that its records suggest the report was not received until 17 June 1993.  This is different from the position taken by Mr Miller, who submits that the report must have been received prior to 24 March 1993, as on that date the Corporation paid Mr Miller a lump sum in respect of his covered injury.

6. A further report was obtained by Mr Miller in January 1994 from Dr Macedo, a rheumatologist.  This report, which was also provided to the Corporation, supported the conclusion of Mr Baylis.

7. In 1994 Mr Miller made a late application for review of the 1978 decision suspending payment of compensation.  After a dispute over jurisdiction, the Corporation accepted that the substantive issue could be heard.

8. A further report, by Dr Reynolds, was commissioned in 1999.  Dr Reynolds concluded that there was evidence for both inflammation and trauma contributing to Mr Miller’s symptoms over the years.

9. On 23 April 2003 the Accident Compensation Appeal Authority held that the 1978 suspension could not stand as it required the ankylosing spondylitis to be the exclusive cause of his symptoms.  The Authority held that Mr Miller’s incapacity “has always been a combination of underlying disease and aggravating injury”.[8]  The Authority ordered that Mr Miller’s compensation be reinstated from 14 September 1978.  He was back paid his entitlements of weekly compensation.  Then Mr Miller claimed interest on the backdated compensation.  The Corporation conceded that interest was payable for a short period in 2003 but denied any further liability.

Relevant legislation

[8] At [86].

1. The relevant provision concerning payment of interest is currently s 114 of the 2001 Act.  That section provides:

   114Payment of interest when Corporation makes late payment of weekly compensation

   (1)The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment.

   (2)       The Corporation is liable to pay the interest—

   (a)at the rate for the time being prescribed by, or for the purposes of, section 87 of the Judicature Act 1908; and

   (b)from the date on which payment should have been made to the date on which it is made.

2. This section is the successor to s 101 of the Accident Insurance Act 1998 (the 1998 Act) and s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act).  In Accident Compensation Corporation v Kearney this Court held the very slight changes to the wording of these sections were inconsequential.[9]  The Court also held that s 72 of the 1992 Act governed the period 1 July 1992 to 1 July 1999, s 101 of the 1998 Act governed the period 1 July 1999 to 1 April 2002, and s 114 governs the period from 1 April 2002.[10]  These aspects are not in dispute.

District Court judgment

[9]At [17].

[10]At [6] and [9]–[15].

1. The interest question came before Judge Ongley in the District Court. The Judge began by detailing the factual background to Mr Miller’s claim, as described at [7]–[15] above.

2. Before the District Court, Mr Miller argued that his entitlement to interest arose in 1993, when the Corporation received Mr Baylis’ report.  He submitted that at the time the Corporation received this report it already had the necessary financial information on file.  For that reason the interest requirement “crystallised” at this point.  By contrast, the Corporation argued that the medical conclusions were not clear until at least 2001.

3. Judge Ongley identified two reasons why the Corporation did not have “all information necessary” to calculate Mr Miller’s payment until 2003.

4. First, the Judge found that the Corporation did not have all necessary medical information until 2000 at the earliest.  At this point the later reports of Dr Macedo had been received, reporting Mr Miller’s case in more detail.  Prior to this time, the Corporation did not have all necessary information; at best, it had information that required further investigation.  In particular, with respect to the reports of Mr Baylis, Dr Macedo, and other information received prior to 2000 (including a report from Dr Reynolds in 1999), the Judge found:

   [32]     In my view that medical evidence was not enough for the Corporation to decide to pay arrears of weekly compensation.  The claim was not able to be fully considered until further reports were received from Dr Macedo, and again from Dr Reynolds in 2000 and 2001.  The decision by [the Authority] relied on those reports, which were received once the 1998 Act was in force.

5. Therefore, although the Corporation had the “relevant earnings information” in 1992, it did not have the necessary medical information.  This conclusion is set out at [44]:

   In this case the Corporation had the earnings information because it had been paying earnings related compensation, but it was no longer satisfied that the appellant had incapacity through personal injury caused by an accident.  In 1992 the Corporation was advised by Dr Baylis that the appellant did not have a disease process, and that there was evidence that injuries to his back for which he was entitled to lump sum compensation.  The report did not address incapacity in the context of loss of earnings.

6. Second, Judge Ongley found that by the time Dr Macedo’s later reports were received, the Accident Insurance Act 1998 was in force.  Section 373 of that Act required that in some circumstances the Corporation was liable to pay a sum to WINZ in order to refund benefit payments received by the appellant.  Thus, once the 1998 Act was in force, the Corporation could not be said to have “all information necessary” unless it also had the information required to calculate the amount of any such refund.  Judge Ongley found that this information was not provided until 2003.  For these reasons, no interest was payable.  Thus, after 2000 the Corporation had the necessary medical information, but did not have the necessary financial information.

7. With respect to the post 1998 period, the Judge found:

   [47]     In my view, the Corporation did not at that stage [in 1999] have all necessary information to make the decision that the appellant had incapacity for work caused by personal injury.  It had information that required further investigation.  Even in 1999, Dr Reynolds reported that he did not think that Mr Miller had physical disability of such severity as to prevent him from engaging in some form of gainful employment.  The Corporation obtained the necessary information during 2000 at the earliest when Dr Macedo reported in more detail and outlined the injury-related contributing cause of chronic spinal pain syndrome.  By that time the Accident Insurance Act 1998 was in force, and the information required for calculation and payment of back-dated weekly compensation included benefit refund information from WINZ.  The uncertainty of the information was reflected in the Authority’s decision of 23 April 2003 in which he was unconvinced by the earlier reports alone …

8. Judge Ongley’s overall conclusion was as follows:

   [48]     My analysis of the medical reports, supported by the analysis made by Mr Cartwright of the … Authority is that the Corporation did not have all necessary medical information to calculate the payment of back-dated compensation to the appellant until the Accident Insurance Act 1998 was in force.  Under s 373 of that Act it was required to account to WINZ for a refund of benefit paid to the claimant.  Although it had been provided with some WINZ information in 1993, it did not have relevant information for the payment to the appellant until various dates during 2003 when the calculations were considered.  The respondent has paid the appellant interest based on delays in 2003.  I find that no interest was payable under s 72 of the 1998 Act.

High Court judgment

1. The appeal to the High Court was advanced by way of the question of law set out at [3] above. Simon France J answered that question “yes” and awarded interest backdated to 1 July 1992.[11]

   [11]      Miller v Accident Compensation Corporation, above n 4.

2. In the High Court, Mr Miller argued that Kearney (a recent decision of this Court) was authority for the proposition that interest would be payable whenever the Corporation had wrongfully suspended compensation.  That was on the basis that there must have been a point in time when compensation was paid before it was (wrongly) suspended.  Accordingly, when the Corporation had the necessary information the statutory requirement to pay interest was triggered.  The Corporation submitted that Kearney was limited to cases where the Corporation was at fault in suspending the weekly compensation.  It was argued that the present case involving Mr Miller provided an example of where there was no fault and therefore no interest.

3. With respect to Kearney, the Judge noted that it concerned a situation where Mr Kearney’s weekly compensation was stopped in 1991 and his entitlement re‑established in 2004.  It was not disputed that the Corporation’s decision to cease payments was unlawful.  The Corporation had argued that Mr Kearney was not entitled to any interest payment because at the time his entitlement was re-established the Corporation did not have all the financial information it required to make the payment.  However, this Court found that this lack of information was not fatal because the omission was due to the Corporation’s own delay.  Giving judgment for the Court, Chambers J said:[12]

   …  Since 1992, Parliament has decreed that the Corporation should have to pay interest if it is late in paying compensation.  That is fair: after all, claimants are dependent on this compensation to live.  But Parliament qualified the Corporation’s obligation in one respect.  If the Corporation did not have all the information it needed to enable calculation of the payment, the obligation to pay interest did not arise until such information was forthcoming.  In our view, it was implicit in that qualification that the Corporation would ask for information it needed in a timely way.  Accident victims could not be expected to mind-read or to search through the immensely complicated legislation themselves.  Parliament would not have countenanced a regime whereby the Corporation sat by, requested nothing, and then later attempted to take advantage of the qualification to its obligation to pay interest on late payments.  Still less could Parliament have intended the Corporation to be able to represent to an accident victim it (wrongly) did not need any further information, and then later be able to take advantage of that error.  In short, Parliament would not have envisaged a situation where the Corporation sought to benefit from its own wrong. 

   [12]At [32].

4. Simon France J adopted Mr Miller’s submissions.  He was particularly influenced by the following passage from the Kearney judgment:[13]

   [36]     We accept that the cases on this topic do not speak with one voice.  But there are a number where the conclusion to which we have come was either the stance adopted by the Corporation itself or what courts determined.  For example, in Robinson, the Corporation paid Mr Robinson interest from 1 July 1992.  Other cases consistent with our conclusion are McLean,[14] Druce v Accident Compensation Corporation,[15] Walters v Accident Compensation Corporation,[16] and Lethbridge v Accident Compensation Corporation.[17]

   [13]      Accident Compensation Corporation v Kearney, above n 6.

   [14]McLean v Accident Compensation Corporation HC Auckland CIV-2007-485-2653, 2 May 2008.

   [15]      Druce v Accident Compensation Corporation DC Wellington AI 48/01, 3 July 2001.

   [16]      Walters v Accident Compensation Corporation DC Huntly AI 38/02, 28 March 2003.

   [17]      Lethbridge v Accident Compensation Corporation DC Wellington AI 281/99, 13 July 2001.

1. Simon France J placed weight on the fact that in several of these cases interest was awarded despite there being no suggestion that the Corporation was blameworthy.  The Judge concluded:

   [37]     At the end of all this I am relatively confident about the effect of the Court of Appeal decision, but perhaps less so about the analytical or statutory route by which it is implemented.  I consider it is clear that where the Corporation has been paying compensation, stops it and then later it is held that the compensation should have continued, the claimant will be entitled to interest.  It seems this is because at the time of suspension or cancellation the Corporation had all the information it needed.  The fact that it later needs further information at the time of reinstatement does not matter.

   [38]     I reject the Corporation’s contention that this outcome is limited to situations where the Corporation was at fault in relation to the suspension decision.  Whilst that is true of the facts in Kearney, I do not see that the Court regards this as the defining characteristic.  What matters is that at an earlier point in time the requirements of s 114 were met; any subsequent lack of information is due to a Corporation decision and to the failure of the Corporation (culpable or not) to thereafter continue to ask for the information.

Submissions of the parties

1. In this Court Mr Corkill QC for the Corporation advanced four submissions.  First, he submitted that the High Court had interpreted Kearney more broadly than was intended by the Court of Appeal.  Specifically, he contended that Kearney placed emphasis on the unlawfulness of the Corporation’s decision to suspend compensation. When the judgment is read as a whole, it is apparent that the focus of the Court of Appeal was on the principle that the Corporation should not be allowed to profit from its own wrong. Counsel submitted that Simon France J was wrong to place emphasis on the cases cited at [36] of Kearney because those cases addressed the principle that interest could only run from 1 July 1992, rather than the separate issue of the circumstances in which interest was payable.

2. Second, Mr Corkill submitted that the purpose of s 114 is to deter administrative delay by the Corporation.  Counsel relied on the case of Commissioner of Inland Revenue v Buis in support of this proposition.[18]  There, Simon France J held that payments under s 114 are made:[19]

   … not … because the claimant has loaned the money, or because the claimant has been deprived of its earning potential.  It is made in a sense because the claimant is a “victim” of an inadequate processing of his or her claim.

   [18]Commissioner of Inland Revenue v Buis (2005) 22 NZTC 19,278 (HC).

   [19] At [54].

3. Third, counsel argued that the text of s 114 favours the interpretation of the provision contended for.  Counsel points to the words “all information necessary” and noted that this includes both financial and medical information.  Thus the Corporation submitted that the Court should not adopt a construction which means it is not necessary to obtain all necessary information.

4. Finally, counsel submitted that it cannot be said that the payment of weekly compensation should have been made at the time the payments were cancelled, because at that time the medical evidence available to the Corporation actually precluded the payment of compensation.

5. For Mr Miller, counsel (also Mr Miller) submitted that the phrase “all information necessary” should not include medical evidence.  Mr Miller submitted that the indications to the contrary in Kearney should not be taken out of context.  On this interpretation, s 114 will apply, provided there is at least some medical evidence supporting incapacity at the time of the erroneous decline or suspension.  Mr Miller submitted that this test will always be met in suspension situations, as in that scenario there will necessarily have been qualifying medical and financial incapacity evidence on file.  Counsel submitted that this approach does not create an “illogical inconsistency” between decline of cover versus suspension of entitlements situations, as under the 2001 Act “cover” situations are generally treated differently, and afforded less protection, than “suspension” situations.[20]

   [20]Citing s 145(2) of the 2001 Act, which reverses the burden of proof onto the Corporation in the case of disputed revoked claims.

6. Second, Mr Miller submitted that the fact that the Corporation was legally following the statutory process using the medical information in its possession at the time is not determinative.  That is because the information held by the Corporation at that point in time was later found to be incorrect.

7. Finally, Mr Miller submitted that the purpose of s 114 is to provide compensation to claimants.  Mr Miller identified support for this statement in [32] of Kearney, as quoted above at [28]. He submitted that, given this purpose, the starting point in applying s 114 should always be the assumption that an injured claimant will receive interest on backdated compensation.

Discussion

1. As we have noted, the precursors to s 114 were s 101 of the 1998 Act and  s 72 of the 1992 Act.  Prior to the 1992 Act New Zealand’s accident compensation legislation did not specifically provide for payment of interest where the Corporation made late payments of weekly compensation.[21]

   [21]This does not mean that payment of interest was impossible: in Accident Compensation Corporation v Broadbelt [1990] 3 NZLR 169 this Court held that interest was payable on the late payment of compensation for pecuniary loss not related to earnings under s 80(1) of the Accident Compensation Act 1982, and it is arguable that interest payments may have been granted under s 118 of that Act (which dealt with ex gratia payments).

2. Section 72 was introduced into the 1992 Act through a Supplementary Order Paper.  For that reason, neither the Select Committee Report nor the parliamentary debates provide any indication of Parliament’s intention in enacting this provision.  The only documents of this type provided to us by counsel were letters written in 1996 from the then Corporation Minister Mr Doug Kidd and Member of Parliament Mr Max Bradford in response to inquiries from Ms Jocelyn Kendrew.  In that correspondence Mr Kidd notes that the Corporation did not undertake a detailed analysis of the proposed section prior to its incorporation into the Bill.  Mr Bradford confirmed that the clause “did not excite any particular interest in submissions before the Committee” and commented that in his opinion the rationale behind the clause is to discourage the Corporation from unreasonably delaying payment.  Our own research has failed to uncover any further relevant documents or parliamentary materials.

3. We consider that it is unhelpful to characterise the purpose of what is now s 114 as being either solely compensatory or solely punitive.  In our view the purpose of the section is to compensate claimants for delays in processing their entitlements.  At the same time, the section seeks to deter the Corporation from unnecessary delay.  These twin purposes should not be seen as mutually exclusive.  The focus must be upon how the section should be interpreted in its statutory context.

4. It is now well established that interest will run from the first date on which it can be said that the Corporation holds “all information necessary”.[22]  The focus is not on the date of review or appeal, but rather on the date when it can be said that the Corporation is first in possession of the necessary information to make the same decision as that eventually reached on review or appeal.[23]  Hence the Corporation’s liability to pay interest on any payment of weekly compensation arises if such payment is not made within one month after the Corporation has received all the necessary information.  This interpretation draws on the plain meaning of the section.

   [22]Barnett v Accident Compensation Corporation HC Auckland  AP64-SW02, 5 December 2002 at [36] and Howley v Accident Compensation Corporation HC Invercargill AP29/01, 6 December 2001.

   [23]Plainly it is also not the date of the accident.  Under the Act the compensation of claimants for loss of use of money is not absolute.

5. It is also consistent with the statutory context.  As was submitted to us by Mr Corkill, the 2001 Act contains numerous administrative provisions.  These include a number of sections which emphasise the importance of provision of information to the Corporation.  For example, s 55 imposes broad obligations on the claimant to assist in the establishment of cover and entitlements, including the responsibility to provide medical certificates, to undergo medical assessments, and to provide “any other relevant information that the Corporation requests”.  Likewise, s 72 provides that claimants who receive entitlements are subject to ongoing responsibilities to provide relevant information upon request.

6. In Barnett v Accident Compensation Corporation the following information was found to be necessary to make or calculate the payment:[24]

   (a)that there had been an incapacity due to personal injury;

   (b)the personal injury was caused by an accident;

   (c)the date of the accident;

   (d)that the appellant was an earner during the relevant period;  and

   (e)the appellant’s relevant earnings during the period.

   [24] At [38].

7. We agree with that assessment.  In Kearney, this Court made it clear that the term “all necessary information” could include “further medical or financial information”.[25]

   [25] At [30].

8. The central focus of Kearney is the principle that the Corporation cannot rely on its own error in failing to request information as a reason for declining to make interest payments.  This is clear from [32] of that judgment.  We consider this is an important principle that was not clearly enunciated in prior authorities.

9. Finally, we consider that it is not necessary to place significant weight on [36] of this Court’s judgment in Kearney.  It is clear from the particular passages referred to in that paragraph that the Court did not intend to endorse every aspect of those judgments but was instead concerned with (i) confirmation of its approach to the transitional provisions, and (ii) the overall approach to s 114.  We are satisfied that this Court in Kearney was not purporting to address the circumstances raised by this appeal; namely, the situation where all the available medical evidence supports the Corporation’s decision to cancel or suspend payments of weekly compensation.

10. We have considered four possible scenarios in which the Corporation might make a decision to cancel or suspend compensation that is later overturned on appeal.[26]  These are:

    (1)the Corporation makes an error in interpreting the statute;

    (2)the Corporation misinterprets medical advice;

    (3)the Corporation receives and correctly interprets ambiguous medical advice and reaches the conclusion that compensation ought to be cancelled, but later advice reveals that decision to be incorrect; or

    (4)the original medical advice provided to the Corporation conclusively supports the cancellation of compensation, but later advice reaches a different conclusion.

    [26]We are not suggesting that these four scenarios are exhaustive.  There may well be more possibilities or there may be factual variations on the four we have listed.

11. Assuming that all other necessary information is provided, in situations (1) and (2) it is apparent that the Corporation had “all information necessary” to calculate payment at the time the suspension decision was made.  All relevant information was before the Corporation; the fact that it wrongly interpreted or applied the statute thereby making an error of law (as in Kearney) or misinterpreted medical information contained in a report provided does not alter that fact.  Hence, in this situation, interest would run from the time of suspension.

12. Similarly, in (3), it can be said that the Corporation had before it the information required to make a finding that compensation should continue.  Although the conclusion to cancel compensation may have been open to the Corporation at the time it was made, it was ultimately proven to be incorrect.

13. In (4), however, it cannot be said that the Corporation had “all information necessary” to calculate the payment.  That is because where all medical evidence available to the Corporation pointed against compensation it is not open to the Corporation to calculate and make the payment.  In this circumstance interest will not become payable until such date as the Corporation does receive “all necessary information”.  When determining when “all necessary information” is received, however, the Court must keep in mind that claimants ought not to be penalised for failure to provide information that has not been requested by the Corporation.[27]  Any new information received by the Corporation should be promptly assessed and, if it is necessary to seek further information either from the claimant or from (say) an independent assessor, this must be done without delay.

Our answers to the questions of law posed by Simon France J

[27]      Applying Accident Compensation Corporation v Kearney, above n 6.

1. The first question for determination is whether Simon France J erred in determining that where the Corporation has been paying compensation, stops it and later it is held that compensation should have continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed.  The second question for determination is whether the Judge erred in determining that such an outcome was not limited to situations where the Corporation is at fault in relation to a suspension decision.

2. We answer the first question “yes”, and the second question “no”.

3. We do not consider that there is any material distinction between those cases where the Corporation initially accepts that there is an entitlement to compensation and then ceases payment and those cases where the Corporation initially declines compensation.  The mere fact that the Corporation has accepted that a claimant is entitled to compensation does not mean that it was correctly accepted,[28] or that all relevant information is necessarily available to the Corporation. Whether, at the time cover is declined, the Corporation has all necessary information is a question of fact to be determined with reference to all of the relevant circumstances.

   [28]As in this case where the Corporation initially paid weekly compensation and then conducted a review as described at [7] above.

4. In scenarios (1)–(3) outlined above, at the point at which compensation is withdrawn the Corporation will have all necessary medical information.  If compensation has previously been paid, it is likely (although not certain) that the Corporation will have the necessary financial information on file.

5. In scenario (4), however, at the point at which compensation is withdrawn the Corporation does not have the necessary medical information.  That is because the available medical evidence does not support continued cover.  Although the necessary financial information may be known, that will not be sufficient.

6. For these reasons, it cannot be correct that, whenever the Corporation has been paying compensation, stops it, and later it is held that compensation should have been continued, the claimant will be entitled to interest because at the time of suspension or cancellation it had all the information it needed.  We do not think there is anything in Kearney that suggests otherwise.  Rather, Kearney was an example of a case involving a misinterpretation of the statute (scenario (1)), whereas the present appeal involves a situation where the special medical advice sought by the Corporation conclusively supported the cancellation of compensation (scenario (4)).

7. Similarly, we find the statement that whether or not interest is payable is dependent on considerations of fault to be unhelpful.  Section 114 does not contain reference to any such test; rather, the test is simply whether “the Corporation has received all information necessary to enable the Corporation to calculate and make the payment”.  Again, we do not consider that there is anything in Kearney that supports an alternative test.  It is correct that in scenarios (1)–(3) the Corporation could be said to be “at fault”, while in scenario (4) the error cannot be attributed to the Corporation.  Yet this is not in itself the defining characteristic, a point correctly made by Simon France J (whose views are at outlined above at [30]).  For this reason, the answer to the second question must be “no”.  That is, the High Court was not erroneous in law in determining that liability is not limited to situations where the Corporation is at fault in relation to a suspension situation.

Where to from here?

1. In our judgment, however, this is not the end of the matter.  Our conclusions as to the questions of law at issue in this appeal give rise to factual issues that are outside the jurisdiction of this Court on a case stated appeal.

2. First, we consider that the date of 1 July 1992 adopted by Simon France J in the High Court cannot be the correct date for the commencement of interest.  As outlined above, there is no overarching rule that the claimant will be entitled to interest when the Corporation has been paying interest, stops it, and later it is held that compensation should have been continued.  Instead, s 114 requires the Court to identify the first date on which the Corporation had all medical, financial, and other information necessary to make the payment.  Here, the parties do not contest the fact that the reports favourable to Mr Miller’s claim were not received until 1993 at the earliest.  For this reason, it seems likely that the determination of this appeal will require factual findings as to the dates the Corporation received and had a reasonable opportunity to assess those reports.  Given that there is a dispute as to how and when those reports came into the possession of the Corporation, it is not possible for us to make such findings.

3. Second, we consider that, as a result of this Court’s decision in Kearney, the legal position has evolved since Judge Ongley’s decision in the District Court.  In particular, Judge Ongley made a finding that the Corporation did not have all medical information necessary in 1993 because the reports before the Corporation at that stage were not determinative, and further reports were not received until 2000.  In the light of the findings in Kearney, we consider that the Judge erred in not considering whether, once the Corporation was made aware of Mr Baylis’ report, it was under an obligation promptly to conduct further investigations and whether, if no such investigations were carried out, it was not open to the Corporation to take advantage of this omission.

4. We are satisfied that once these aspects are taken into account, the questions of the date that the Corporation received Mr Baylis’ report and the status of the financial information provided to the Corporation at that time will be highly relevant. For understandable reasons those factual matters could not have been thoroughly traversed in the District Court.

Submissions of the parties

1. We invited further submissions from the parties on the question of whether the case ought to be referred back to the High Court.  Mr Corkill repeated the Corporation’s primary position as that which was advanced at the hearing.  That was that the District Court made factual findings which must stand.[29]  Moreover the High Court and Court of Appeal are only required to consider questions of law on the basis of those factual findings.

   [29]      The findings relied on are those at [32], [44], [47] and [48] of the District Court decision.

1. Mr Corkill then addressed a question that had been raised post-hearing by way of Minute inviting the parties to clarify when it was that the Corporation first received the report dated 1 December 1992 from Mr Baylis.  From an affidavit of Mr M Shelton, filed on behalf of the Corporation, it seems that it was received by the Corporation on 17 June 1993.  Other documentation provided by Mr Shelton describes when other information, such as financial information, came into possession of the Corporation.

2. Mr Corkill submitted that these are factual matters as to when all necessary information – both medical and financial – was received in the light of the material contained in the affidavit.  Mr Corkill submitted that a date of 16 September 1993 was the date when all the necessary information had been obtained.  However Mr Corkill very properly made the following submission which we set out in full:

   6.6It may be, however, that this is a factual question which would need to be referred back for determination.  In Accident Compensation Corporation v Ambros [2008] 1 NZLR 340, at [109]–[113], this Court considered the question of the appropriate process where there are unresolved issues of fact on a Case Stated as to a question of law. It will be seen that in that instance, the matter was referred in the first instance to the High Court, but if the High Court decided that the parties should be allowed to adduce further evidence the most suitable course would be for the High Court to refer the matter back to the District Court. Depending on the Court’s conclusions in this matter, that may be a procedure which the Court needs to consider in the present case.

3. Mr Miller submitted that the factual issues required careful consideration because the original claim file was destroyed by the Corporation in a cull.  He submitted that all that remains is a photocopy of the report with no indication of a “date received” stamp.  He contended that the likely date of receipt was some time before 24 March 1993 being the date when Mr Miller was awarded a lump sum by the Corporation relating to his covered injury.

4. In the absence of a clear cut date, and on the assumption that this Court were to decide to embark upon factual findings, counsel submitted that a mid point between 1 December 1992 and 24 March 1993 would appear to be reasonable.

Our view

1. It is convenient to refer first to the findings of this Court in Accident Compensation Corporation v Ambros:[30]

   [109]    Section 166(1) of the 1998 Act provides that a party to an appeal before the High Court may, with the leave of the High Court, appeal to this Court by way of case stated for the opinion of that Court on a question of law only.  Section 166(3) provides for such appeals to be dealt with in accordance with the rules of this Court, being currently the Court of Appeal (Civil) Rules 2005 (SR 2005/69).  Rule 47 provides that all appeals are by way of rehearing.  Rule 48 gives a wide range of powers to the Court when hearing and disposing of appeals.

   [110]    At first blush, there is a conflict between the application of the rules and the case stated procedure. As generally understood, a right of appeal by way of case stated is not a right of appeal to this Court by way of rehearing.  It is a form of consultation with the appellate court to obtain an answer on a point of law (see Harris Simon & Co Ltd v Manchester City Council [1975] 1 WLR 100 (QB) at 105 per Lord Widgery CJ).

   [111]    It seems to us that, in order to resolve the possible conflict, the rules must be read in a manner that is consistent with the nature of a case stated.  This is particularly the case as any appeal to this Court is confined to a question of law.  This means that it would be inappropriate for us to undertake a full review of the evidence in order to make factual findings on causation.  We should limit ourselves to answering the question in the case stated and referring the matter back to be resolved in accordance with our opinion.

   [112]    Even if we had jurisdiction to make findings on causation, however, we would not have considered it appropriate to do so in the absence of full argument and when the necessary underlying factual findings … have not been made by the courts below.

   Should the matter be referred back to the High Court or the District Court?

   [113]    Given that the case was stated by the High Court, we consider that the matter should be referred back to that Court.  Further, Mr Ambros should have the opportunity to have the High Court assess his argument that causation has already been proved to the requisite standard.  If, however, the High Court decides that the parties should be allowed to adduce further evidence, it seems to us, for the reasons given by the Corporation  …, that the most suitable course would be for the High Court to refer the matter back to the District Court.

   [30]      Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.

2. In the light of the outstanding factual issues we consider that, as in the Ambros case, the High Court should have the opportunity to consider the factual questions arising from our answers on the case stated.  If the High Court decides that further evidence is required then the High Court may determine to refer the matter back to the District Court for determination of the outstanding factual matters.

Result and costs

1. The first question posed by the case stated is answered “yes”. The second question is answered “no”.

2. The matter is to be referred back to the High Court to be dealt with in accordance with the principles set out in this judgment.

3. As to costs, despite the fact that the Corporation has succeeded in its interpretation arguments, we consider that this is a case where costs should lie where they fall.  Essentially the case was treated as a test case.

Solicitors:
John Miller Law, Wellington for Respondent