Andrews v Accident Compensation Corporation - [2025] NZHC 1833

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-599

[2025] NZHC 1833

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to appeal to the High Court under s 162 of the Act

BETWEEN

GARY ANDREWS

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 19 June 2025

Appearances:

B Hinchcliff for the Applicant F Becroft for the Respondent

Judgment:

7 July 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 7 July 2025 at 11 am pursuant to r 11.5 of the High Court Rules

……………………………… Deputy Registrar

Solicitors:
ACC and Employment Law, Auckland Medico Law Ltd, Auckland

ANDREWS v ACCIDENT COMPENSATION CORPORATION [2025] NZHC 1833 [7 July 2025]

Introduction

[1] Gary Andrews’ application to the Accident Compensation Corporation (ACC) for retrospective weekly compensation from 4 July 2014 onwards was successful. However, he then claimed that the date of incapacity used to calculate his weekly compensation should have been 12 March 2005. He seeks leave to appeal Judge Clark’s decision affirming ACC’s determination that 4 July 2014 is the correct date.1

[2]Mr Andrews proposed the following questions of law for his appeal:

(a)Did the Judge err by incorrectly applying the Act to determine that 4 July 2014 should be used as the date of incapacity?

(b)How must the date of incapacity used to calculate weekly compensation entitlements pursuant to sch 1, cl 36 of the Accident Compensation Act 2001 be determined when there are multiple dates of incapacity?

[3] The background to this matter is relatively complex. I briefly summarise it below before turning to consider Mr Andrews’ proposed questions of law and his application for leave to appeal.

Background

[4] On 12 March 2005, Mr Andrews suffered an injury to his right shoulder while playing rugby. He could not continue working as a pallet maker and received weekly compensation from the ACC between 22 March and 7 May 2005. Mr Andrews was still able to continue his employment as a timber worker labourer. Even so, he reported ongoing shoulder issues and underwent numerous medical tests over the following years. Mr Andrews received compensation for incapacity between 28 April and 8 August 2006. That said, he was still working making wooden pallets in May 2007.

[5] Between 5 September 2007 and 25 June 2013, Mr Andrews lived in Australia and worked as a picker and warehouse person.2 He reported that this work involved

1 Andrews v Accident Compensation Corporation [2025] NZACC 17 [Decision under appeal].
2 As recorded in the Complex Occupation Assessment Report dated 6 March 2024.

heavy lifting, although both counsel acknowledge there is a lack of evidence regarding Mr Andrews time in Australia.3 After returning to New Zealand, Mr Andrews worked as a labourer and making roller doors in early 2014.4 On 4 July 2014, he complained to his general practitioner of shoulder pain. In October 2014, Mr Andrews ceased work and began receiving a benefit from Work and…

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: [2025] NZHC 1833
Decision Date: 7 July 2025

CaseChat Overview and Summary

In Andrews v Accident Compensation Corporation, the applicant, Gary Andrews, sought special leave to appeal the District Court's decision affirming the Accident Compensation Corporation's (ACC) determination of the date of incapacity used to calculate his weekly compensation. Andrews argued that the correct date of incapacity should be 12 March 2005, the date of his initial injury, rather than 4 July 2014, the date used by the ACC. The legal issues before the court involved determining whether the Judge erred in applying the Accident Compensation Act 2001 and how the date of incapacity should be determined when there are multiple dates of incapacity.

The court found that the Judge's determination of the date of incapacity was a factual finding, which was supported by the medical evidence. The applicant would need to meet the high threshold established in Edwards v Bairstow to successfully challenge this finding. The court also found that the applicant's proposed grounds of appeal were largely without merit and did not raise issues of principle or of wider importance. The court held that the desirability of finality of litigation must prevail, and therefore declined the application for special leave to appeal.

Orders