Accident Compensation Corporation v Smith - [2016] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-485-390 [2016] NZHC 2051

UNDER THE Accident Compensation Act 1982

IN THE MATTER OF

an appeal under Section 111 of the Act

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Appellant

AND

TREVOR SMITH Respondent

Hearing: 21 October and 20 November 2015

Appearances:

C Light for the Appellant
W A Forster for the Respondent

Judgment:

31 August 2016

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] Mr Trevor Smith’s relationship with the accident compensation system has

been tortuous and extensive since he suffered a back injury in 1981.

[2] The Accident Compensation Corporation (ACC), appeals against a 2014 decision of the Accident Compensation Appeal Authority (the Authority),1 which recalled a 1995 decision of the Authority. The 1995 decision held that Mr Smith had not shown a loss of earning capacity as a result of personal injury, but only that from
time to time he had suffered a temporary loss of earnings.

1 Smith v Accident Compensation Corporation [2014] NZACA 6.

ACCIDENT COMPENSATION CORPORATION v SMITH [2016] NZHC 2051 [31 August 2016]

[3] ACC was granted leave to appeal to this Court by the Authority on a question of law.2 The question for this Court is:3

Does the Authority have the power to recall an earlier sealed decision and is it relevant whether a higher court has upheld the decision?

Background

1981

[4] Shortly after Mr Smith’s injury, he was granted cover for earnings-related compensation. Payments began in May 1981.

1988

[5] ACC accepted Mr Smith was entitled to earnings-related compensation from

4 September 1987, which was paid until 20 March 1992.

[6] This appeal stems from the fact that in 2014, the Authority identified an error in calculation,4 whereby ACC had incorrectly used a divisor of 52 weeks instead of
46.29 weeks to calculate Mr Smith’s earnings-related compensation. This had the effect of depriving him of $25.95 per week compensation to which he was entitled. His relevant earnings at the date of his accident were $237.79 not $211.84 per week.

1992

[7] Mr Smith’s entitlement to earnings-related compensation was cancelled by
ACC on 2 April 1992, with effect from 29 March 1992. This was because Mr Smith had failed to keep ACC informed of his earnings.

2      Accident Compensation Corporation v Smith [2015] NZACA 5.
3      Accident Compensation Corporation v Smith, above n 2, at [37].
4      Smith v Accident Compensation Corporation [2014] NZACA 3.

1995

[8] ACC’s 1992 decision was appealed to the Authority (Judge Middleton), and in a 1995 decision it held that Mr Smith had not shown a loss of earning capacity by reason of his personal injury (the 1995 decision).5

[9] Judge Middleton addressed s 59(1) of the Accident Compensation Act 1982, as to whether Mr Smith’s loss of earning capacity was due to personal injury by accident, and he concluded:6

… in making a decision, it is essential to be aware of the full history of the appellant’s problems. The medical evidence is that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 2051
Decision Date: 31 August 2016

CaseChat Overview and Summary

In this case, the Accident Compensation Corporation (ACC) appeals a 2014 decision of the Accident Compensation Appeal Authority (the Authority), which recalled a 1995 decision. The 1995 decision held that the respondent, Mr Smith, had not shown a loss of earning capacity as a result of personal injury, but only that from time to time he had suffered a temporary loss of earnings. The appeal raises the issue of whether the Authority has the power to recall an earlier sealed decision, and if it is relevant whether a higher court has upheld the decision. The Authority concluded that the 1995 decision was based on a mistake of fact, and that recall was appropriate since the respondent had no useful appeal rights (appeals on questions of fact), available to him. The Court held that the Authority does not have the power to recall an earlier sealed decision. The sealing of a judgment has the effect of "perfecting" it, and the Court then cannot revisit its judgment by way of recall. The Court also held that it does not otherwise have the power to recall an earlier decision which has been upheld by a higher court as that is irrelevant. The Court concluded that it was not open to the Authority to recall its 1995 decision and its 2014 decision was in this respect made in error.

Orders