Andrews v Accident Compensation Corporation
[2025] NZHC 1833
•7 July 2025
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 Income New Zealand (WINZ).
[6] In June 2020, an MRI scan of Mr Andrews’ shoulder revealed a potential diagnosis. He filed medical certificates claiming incapacity from 2005 to the present. This claim was questioned by Dr Paterson, a medical adviser, who noted that Mr Andrews had had periods of heavy work, alongside no work, through to 2015. Mr Andrews withdrew his claim. He then made a prospective claim for post-surgery compensation from July 2022, but this was denied because Mr Andrews was not an earner at that time. Finally, Mr Andrews resurrected an amended version of his previous retrospective compensation claim with a new start date of 4 July 2014. After further inquiry, the ACC confirmed a backdated payment of weekly compensation (amounting to around $60,000 after a WINZ deduction) to cover the period between 4 July 2014 and 8 January 2023.
[7] Mr Andrews was dissatisfied with the 4 July 2014 date of incapacity used by the ACC to calculate his weekly compensation. The parties attended mediation and the ACC agreed to look into the matter. The ACC confirmed that the medical evidence supported an incapacity date of 4 July 2014. This was upheld at the first review in August 2023. However, in September 2023, a second review quashed the decision and directed the ACC to reconsider the incapacity date. Another report on the issue supported the incapacity date of 4 July 2014. On 29 November 2023, the ACC issued a further decision confirming the incapacity date of 4 July 2014. On 15 May 2024, this decision was upheld on review. Mr Andrews then appealed to the District Court.
3 As recorded in the Section 103 Assessment dated 10 August 2021.
4 Some of this work involved “Heavy Lifting” as recorded in the Section 103 Assessment dated 10 August 2021.
District Court decision
[8] Mr Andrews’ position was that the correct date of incapacity was 21 October 2014, not 4 July 2014.5 After a thorough examination of the medical evidence, the Judge found that this did not support Mr Andrews’ proposed incapacity date of 21 October 2014.6 Mr Hinchcliff conceded at the hearing that there was no evidence Mr Andrews could do his core 2005 tasks in July 2014.7 The Judge concluded that “on the evidence and applying the legal principles, 4 July 2014 is the date of first incapacity, and therefore weekly compensation has been paid on the correct basis.”8
Leave to appeal decision
[9] On 10 March 2025, Judge Spiller declined Mr Andrews application for leave to appeal to this Court.9 The proposed questions of law largely mirror those raised in Mr Andrews’ present application.10 On the first proposed question of law, Judge Spiller found that Judge Clark’s determination that the date of incapacity was 4 July 2014 was a factual finding.11 His Honour referred to the evidence relied upon by Judge Clark and noted that Mr Andrews had not filed any medical evidence to counter the opinions of the ACC’s experts.12 Judge Spiller rejected this ground of appeal, holding:13
This Court cannot conclude that Judge Clark's treatment of the facts amounts to there being no evidence to support the decision, or the evidence being inconsistent with, and contradictory of, the decision, or that the true and only reasonable conclusion on the evidence contradicts the decision.
[10] Regarding the second proposed question of law, Judge Spiller found that Mr Hinchcliff had not clarified the relevance of sch 1, cl 36 of the Accident Compensation Act — nor the relevance of Jones v Accident Compensation
5 Notably, this is different to his current position — which is that the correct date of incapacity is 12 March 2005.
6 Decision under appeal, above n 1, at [60].
7 At [64].
8 At [83].
9 Andrews v Accident Compensation Corporation [2025] NZACC 43 [Leave decision].
10 See above at [2(a) and (b)].
11 Leave decision, above n 9, at [50]
12 At [51]–[52].
13 At [52].
Corporation14 — to the question of the correct date of incapacity.15 This ground of appeal was rejected. In declining the application, Judge Spiller held that:
[55] … the applicant has not established sufficient grounds, as a matter of law, to sustain his application for leave to appeal, which is accordingly dismissed. The applicant has not established that Judge Clark made an error of law capable of bona fide and serious argument. Even if the qualifying criteria had been made out, this Court would not have exercised its discretion to grant leave, so as to ensure the proper use of scarce judicial resources and the finality of litigation. This Court is not satisfied as to the wider importance of any contended point of law.
Should special leave to appeal be granted?
[11] Mr Hinchcliff for the appellant submitted that the Judge erred in holding the first incapacity date was 4 July 2014. Mr Andrews’ first incapacity date was on or around 12 March 2005, when he first injured his shoulder. Counsel also made four points in support of his argument that Mr Andrews’ compensation had not been paid on the correct basis. First, the ACC has paid weekly compensation from 21 October 2014, not 4 July 2014. Second, there are two prior dates of incapacity (22 March 2005 and 28 April 2006) related to the same shoulder injury. Third, Mr Andrews returned to work after 4 July 2014 and therefore it cannot be the final date of incapacity. Fourth, there is no evidence the incapacity on 4 July 2014 was from an employment in which Mr Andrews was employed when he suffered the personal injury on 12 March 2005.
[12] More substantively, Mr Hinchcliff wanted this Court to determine whether the date of incapacity used to calculate Mr Andrews’ compensation should be the first day he could not perform his pre-injury employment (12 March 2005) or the last day Mr Andrews could not perform his pre-injury employment (4 July 2014). Counsel contended it should be the former. As in Jones, the Court should find Mr Andrews has suffered continuous incapacity since 12 March 2005, and therefore his weekly compensation should be based on his earnings at that time.
[13] Ms Becroft for the ACC submitted the Judge was correct to determine the date of incapacity was 4 July 2014. This was supported by the medical evidence and coincided with Mr Andrews’ claim for weekly compensation. It was also the first date
14 Jones v Accident Compensation Corporation [2013] NZHC 2458, [2014] NZAR 1.
15 Leave decision, above n 9, at [53]–[54].
in a number of years where there is any substantive medical evidence regarding Mr Andrews’ injury. It falls below the high threshold that factual errors must surpass to be errors of law under Edwards v Bairstow.16 In which case, no seriously arguable question of law arises and the application should be dismissed.
[14] Counsel also emphasised that Mr Andrews’ claim before the District Court was that his incapacity did not begin until 21 October 2014. The Judge arrived at 4 July 2014 based on when the medical evidence first indicated a likely inability for Mr Andrews to undertake his pre-injury work because of the shoulder symptoms. No other sensible date was advanced by Mr Andrews.
Discussion
[15] The legal principles for applications for leave to appeal are well settled. I therefore accept the principles outlined by Judge Spiller in his decision declining Mr Andrews application for leave to appeal.17 I also adopt the legal principles as to applications for special leave to appeal as set out in Kenyon v ACC.18
[16] While I have much sympathy for Mr Andrews’ position, I accept Ms Becroft’s submission that many of the proposed grounds of appeal are nebulous and without merit. For example, I find the Judge’s reference to 4 July 2014 as the “first” date of incapacity to be immaterial. His Honour was aware of Mr Andrews’ history of past incapacity, and this language was directly lifted from the parties’ own Agreed Statement of Facts and Issues. Similarly, the payment of compensation from 21 October 2014 rather than 4 July 2014 does not represent a calculation error. Rather, it reflects an abatement in recognition of his earnings between July and October 2014.
[17] Although Mr Andrews worked between July and October 2014, this form of “soldiering on” does not rebut a finding that his date of incapacity was 4 July 2014 in light of the medical evidence and the approach taken by Muir J in Jones.19 In addition, the question is not whether Mr Andrews was actually employed in his pre-injury core
16 Edwards v Bairstow [1956] AC 14 (HL) at 36.
17 Leave decision, above n 9, at [42]–[45].
18 Kenyon v ACC [2001] NZHC 1301 at [15]. See also Macnaughtan v Accident Compensation Corporation [2025] NZHC 1105 at [13]–[15].
19 Jones v Accident Compensation Corporation, above n 14.
employment tasks as of 4 July 2014, but whether he had the capacity to perform them at that date. The medical evidence suggests he did not.
[18] I consider the applicant’s strongest argument to be that, by analogy with Jones, Mr Andrews has essentially had a continuous incapacity since his injury on 12 March 2005 and, therefore, his compensation should have been calculated based upon his earnings from that time. However, the District Court did not consider whether the date of incapacity should have been earlier than 4 July 2014. As set out in the parties’ Agreed Statement of Facts and Issues, the issue for the Judge to determine was:
… whether the evidence supports incapacity as at 4 July 2024, or 21 October 2014 (being the date that should be used to calculate weekly compensation).
[19] Accordingly, the argument raised on appeal — that the date of incapacity should be 12 March 2005 — was not substantively argued before the District Court nor the ACC. Nor does it align with the start date of Mr Andrews’ amended application.20 In which case, it is not clear that this is an appropriate argument to be raised on a second appeal.21 Even if it had been, at first blush, it seems unlikely it would have succeeded.
[20] I agree that the Judge’s finding that the date of incapacity was 4 July 2014 was a factual finding. Mr Andrews would therefore have to meet the high threshold in Edwards v Bairstow. This would be difficult, given the medical evidence supported, and is consistent with, the Judge’s conclusion — it showed Mr Andrews was unable to undertake his core pre-injury employment tasks as of 4 July 2014.
[21] The evidence does not often address whether an earlier date of incapacity was possible, given this was not the focus of the hearing nor of many of the reports.22 Even if Mr Andrews could pursue this new argument, there are real obstacles. Mr Andrews returned to heavy labouring work for significant periods between 2005 and 2014, and there is a gap in the evidence during his almost six years in Australia. While not
20 As noted above at [7], Mr Andrews’ initial application was for a continuous incapacity from 12 March 2005. However, he withdrew that application and filed a new application with a start date of 4 July 2014.
21 See the general principle discussed in White v Lynch [2015] NZHC 1020 at [45]–[47].
22 This was because of Mr Andrew’s strategy to pursue a later incapacity date of 10 October 2014.
impossible,23 Mr Andrews would struggle to discharge his onus of establishing continuous incapacity since 2005.24 In the context of Edwards v Bairstow, it difficult to envisage how the Judge’s factual finding of a date of incapacity of 4 July 2014 would not have been open to his Honour on the evidence and given the lack of evidence concerning Mr Andrews’ capacity of lack thereof while in Australia. Even if it were appropriate to permit Mr Andrews to change his argument on a second appeal, I query whether his new position would be capable of bona fide and serious argument.25
[22] Even if this were not the case, like Judge Spiller in the District Court, I am not persuaded that this Court should exercise its discretion to grant special leave.26 While I acknowledge the importance of this matter for Mr Andrews, I consider that his proposed appeal does not raise issues of principle or of wider importance, does not have a reasonable chance of success and does not deserve scarce judicial time.27 There is no extraordinary factor which the District Court failed to taken into account,28 and I consider that the desirability of finality of litigation must prevail in this case.29
Decision
[23]The application is declined.
Harvey J
23 For example, see Jones v Accident Compensation Corporation, above n 14.
24 Tonner v Accident Compensation Corporation [2019] NZHC 1400 at [43].
25 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation
HC Wellington AP266/00, 6 July 2001 at [4].
26 Leave decision, above n 9, at [55].
27 Kenyon v ACC, above n 18, at [15].
28 Kenyon v ACC, above n 18, at [15(e)], citing Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43.
29 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5], citing Knight v Accident Compensation Corp HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].
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