Bailey v Accident Compensation Corporation - [2016] NZHC 1277

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002201 [2016] NZHC 1277

BETWEEN
DAVID BAILEY

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 11 May 2016

Appearances:

P G Schmidt and H Peart for Applicant
D K L Tuiqereqere for Respondent

Judgment:

14 June 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 14 June 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Schmidt & Peart Law (P Schmidt) Medico Law Ltd (D Tuiqereqere)

BAILEY v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1277 [14 June 2016]

Summary

[1] Mr David Bailey received ACC compensation for a back injury from

11 September 2001. His payments were suspended in late 2004. They were reinstated by the District Court in 2010 and backdated compensation paid. ACC refused to pay interest on the arrears from the date of suspension. The District Court declined Mr Bailey’s appeal based on the Court of Appeal’s creation in Accident Compensation Corporation v Miller of four different categories of such cases in interpreting s 114 of the Accident Compensation Act 2001.1 Mr Bailey seeks special leave to appeal to the High Court to make two arguments.

[2] I am bound by the Court of Appeal’s decision in Miller which does not allow for an alternative interpretation of the Act that would otherwise justify leave to appeal. Miller also disposes of one of Mr Bailey’s arguments since there is insufficient basis to argue, as a question of law, that his case does not fall into category 4. I do not agree his other argument, that the District Court did not properly take into account the conduct of the insurer, is a question of law. I therefore decline Mr Bailey’s application.

[3] The judgment outlines what happened, explains the relevant law, including an alternative interpretation of it, and then deals with the two issues.

What happened here

[4] Whatever the other significance of 11 September 2001 that was the date Mr Bailey tried to save a box of air cargo from falling to the ground at Auckland Airport. He suffered a disc injury to his back and started receiving accident compensation payments.

The battle of medical opinions

[5] Mr Bailey’s condition was assessed by a variety of specialists in 2002 to

2004. Opinions as to its cause differed between specialists and over time.

1 Accident Compensation Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312.

[6] In 2002 Mr Geoffrey Coldham, an orthopaedic surgeon, performed two discectomies to remove disc material. Dr Keith Laubscher, a pain specialist gave Mr Bailey epidural steroid injections for pain.

[7] Mr Bailey’s insurer, Care Advantage sought a view from Dr Courtenay

Kenny, an occupational physician, on the causes of Mr Bailey’s incapacity. In March

2003 Dr Kenny thought the condition was more consistent with development of a chronic pain disorder. In 2003 and 2004 Care Advantage took further advice from Mr Coldham, Dr Laubscher and Dr Kenny and also…

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 1277
Decision Date: 14 June 2016

CaseChat Overview and Summary

David Bailey seeks special leave to appeal the District Court’s decision that he was not entitled to interest on arrears of compensation paid following suspension of his compensation payments. The Court of Appeal’s decision in Accident Compensation Corporation v Miller, which created four categories of cases, is binding on this Court. The first issue for determination is whether the District Court correctly categorised Bailey’s case as falling into Miller category 4, rather than category 3. This issue is not a question of law and does not have a reasonable prospect of success. The second issue is whether the District Court properly took into account Care Advantage’s conduct in its judgment. This is not a proper basis upon which to grant special leave to appeal as it is not a question of law. On this basis, the application for special leave to appeal is declined.

Final orders:
1. The application for special leave to appeal is dismissed.
2. Each party to bear their own costs of the application.

Orders