Borst v Accident Compensation Corporation - [2013] NZHC 176

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-485-720 [2013] NZHC 176

UNDER The Accident Compensation Act 1982

IN THE MATTER OF an appeal to the High Court pursuant to s
111 of the Act

BETWEEN NOEL BORST Applicant

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 11 December 2012

Counsel: P G Schmidt for Applicant
D Tuiqereqere for Respondent

Judgment: 15 February 2013

JUDGMENT OF KATZ J [Application for leave to appeal]

In accordance with r 11.5 High Court Rules
I direct the Registrar to endorse this judgment

with a delivery time of 10.30 a.m. on 15 February 2013.

Solicitors: Schmidt & Peart Law, Auckland – philip-schmidt@xtra.co.nz
Medico Law Limited, Auckland – dane@medicolaw.co.nz

BORST V ACCIDENT COMPENSATION CORPORATION HC AK CIV-2012-485-720 [15 February 2013]

Introduction

[1] The applicant, Mr Borst, seeks leave to appeal to the Court of Appeal from my judgment of 12 October 2012 (“Judgment”).

[2] In 1977 Mr Borst was involved in a motor vehicle accident in which he was seriously injured. At issue in the appeal before me was Mr Borst’s entitlement to a permanent incapacity assessment under s 60 of the Accident Compensation Act 1982 (“1982 Act”). If Mr Borst was entitled to such an assessment he may have been eligible for an ongoing permanent compensation entitlement colloquially known as a “permanent pension”.

[3] Permanent pensions were effectively abolished in 1992. However, under s 368(4) of the Accident Compensation Act 2001 (“2001 Act”) a person might be entitled to a permanent pension if they could establish that an assessment of permanent incapacity was completed after 1 October 1992 (the cut-off date) “only because” an application for review of a decision about the assessment was lodged before 1 October 1992.

[4] Before the Accident Compensation Appeal Authority (“Authority”), Mr Borst had argued that he had made a late application for review of the 1987 decision by way of a review application which was lodged in 2003. However the Authority found, correctly (as Mr Borst now accepts), that s 368(4) was fatal in such circumstances. This is due to the requirement that the relevant application for review had to pre-date 1 October 1992.

[5] Accordingly, on appeal, the matter was argued on an entirely different basis. In particular, Mr Borst relied on a letter he had written to the Minister of the Accident Compensation Corporation (“ACC”) in or about January 1990. Although a range of matters were traversed in argument, essentially the appeal turned on whether the 1990 letter could be construed as a valid application for a review of ACC’s 1987 decision declining to assess Mr Borst for permanent incapacity.

[6] I dismissed Mr Borst’s appeal and found that the January 1990 letter did not constitute an application for a review of ACC’s 1987 decision to decline to assess Mr Borst for permanent incapacity.

[7] Mr Borst now seeks leave to appeal the Judgment to the Court of Appeal.

[8] Counsel for Mr Borst submits that the appeal raises three questions of law, which he has expressed…

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.

Keep reading for free

Create a free CaseChat account to read Borst v Accident Compensation Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 176
Decision Date: 15 February 2013

CaseChat Overview and Summary

Noel Borst, the applicant, sought leave to appeal the High Court decision dismissing his appeal against the Accident Compensation Corporation (ACC). The appeal pertained to Mr Borst's entitlement to a permanent incapacity assessment under the Accident Compensation Act 1982. The key issue was whether a letter written by Mr Borst in January 1990 could be construed as an application for review of ACC's 1987 decision declining to assess him for permanent incapacity, which would allow him to benefit from a transitional provision in the Accident Compensation Act 2001. The High Court dismissed the appeal, finding that the letter did not constitute a valid review application. The appeal to the Court of Appeal hinged on three questions of law: whether Mr Borst's letter was a valid review application concerning temporary loss of earnings, if specificity was required in the letter regarding the form of weekly compensation sought, and if ACC owed Mr Borst a duty of care that would influence the interpretation of the letter. Katz J concluded that the appeal raised primarily factual issues rather than legal ones, and the applicant's arguments required the Court to reach different factual findings than those made in the Judgment. Katz J was not satisfied that there was a question of law capable of serious argument and sufficiently important to warrant a further appeal. The application for leave to appeal was declined.

The final orders of the court were that the application for leave to appeal to the Court of Appeal was declined.

Orders