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 –  [email protected]

Medico Law Limited, Auckland –  [email protected]

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 as follows:

(a)      If Mr Borst’s letter was a valid review application with respect to a temporary   loss   of   earnings,   is   there   an   outstanding   review application?   If so, can this satisfy the condition in s 368(4) of the Accident Compensation Act 2001 that allows late s 60 assessments ordered as a result of an outstanding review?

(b)Did Mr Borst in his January 1990 letter need to identify the specific form of weekly compensation sought, or was it sufficient to challenge the core determination?

(c)      In all the circumstances, did ACC have a duty of care towards Mr Borst?  If so, is that duty, the documents collectively and the rule in Rangiwhetu v ACC sufficient to cure any defect in form?

[9]      I will consider each proposed appeal issue in turn, after briefly outlining the relevant legal principles and summarising the Judgment.

Grounds for appeal – question of law

[10]     Mr Borst’s claim is under the 1982 Act.  Section 112(1) of that Act provides that:

If any party to any proceedings before the Administrative Division of the High Court under this Part of this Act is dissatisfied with any determination or decision of the Court in the proceedings as being erroneous in point of law, he may, with the leave of that Division, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

[11]     A  number  of  cases[1]    have  considered  s  112  of  the  1982  Act  and  the comparable provisions in successor enactments.   In Knight v ACC the High Court considered the equivalent provision under the 2001 Act, being s 163, and stated:[2]

… counsel were in agreement that the principle applicable to an application for leave under s 67 Judicature Act 1908 should apply equally to an application under s 163 of the 2001 Act.   Those principles may be summarised in this way: The appeal must raise some question of law of fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.  That must be treated with this qualification, however, that s 163 is confined to questions of law only and the appeal is to be by way of case stated for the opinion of the Court of Appeal.   Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.

[1] Knight v ACC HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18]; Khan v ACC HC Auckland CIV-2007-485-1632, 14 August 2008 at [5]; Raimona v ACC HC Auckland M820- IM01, 28 February 2002 (considering s 98 of the 1992 Act); Kenyon v ACC [2002] NZAR 385.

[2] Knight v ACC HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].

[12]     The principles involved for granting leave to appeal to the Court of Appeal were also recently discussed in the High Court decision of Sinclair v ACC.[3]     The relevant extract of that decision reads as follows:[4]

In considering whether to grant leave, the applicant must identify an issue of law that is capable of bona fide and serious argument, and which assumes sufficient importance to justify a further appeal.    In the present circumstances, that would amount to a third reconsideration of the Corporation’s original decision.  Requisite importance might be recognised if the point is likely to arise generally or in a range of circumstances, or if it is of such importance that the interests of justice require recognising the appropriateness  of  a  further  appeal.    Ultimately,  the  interests  of  justice should require that leave be granted.[5]

[3] Sinclair v ACC [2012] NZHC 2564.

[4] At [7].

[5] See generally Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA); Jackson v

ACC HC Auckland AP404-96-01, 14 February 2002; Kenyon v ACC [2002] NZAR 385.

[13]     A right of appeal, then, only lies on a question of law.  The question must be serious and arguable and have a reasonable prospect of success.   The purpose of acquiring leave for certain appeals is to ensure that scarce judicial time is allocated fairly and sensibly.  Leave is not granted as a matter of course.  I must be satisfied that there is a question of law which is capable of bona fide and serious argument

and which is sufficiently important to justify a further appeal.

The Judgment

[14]     Despite the various arguments raised by Mr Borst in his appeal to the High

Court, the primary issue was fairly narrow. As noted at [30] of the Judgment:

In this case the key issue is whether Mr Borst’s January 1990 letter can be interpreted as an application for review of ACC’s June 1987 decision not to undertake a s 60 permanent incapacity assessment, in order to fall within s 368(4) of the 2001 Act.

[15]     I accepted Mr Borst’s legal submissions as to the proper way in which to approach interpretation of the both the legislation as well as the correct approach to be taken to the evidence and facts.  In particular, Mr Borst submitted that I should take a generous and “unniggardly” approach to interpretation of the letter, and that individual documents should be interpreted in the context of surrounding documents. This was in accordance with the principles set out in cases such as Harrild v Director of Proceedings[6] and Rangiwhetu v ACC.[7]   At [32] of the Judgment I stated that:

I accept those submissions.  Indeed, the requirement to take a “generous and unniggardly” approach to interpretation of the letter is particularly important in this case, given that Mr Borst had been misinformed (presumably unintentionally) in ACC’s June 1987 letter as to the reasons why ACC was unwilling to undertake a permanent incapacity assessment at that time.

[6] Harrild v Director of Proceeding [2003] NZLR 289 at [39].

[7] Rangiwhetu v ACC HC Wellington CIV-2006-485-1402, 19 April 2007 at [41].

[16]     I proceeded, from [33] to [47], to analyse the material facts and evidence.  At

[47] I concluded that:

While I have some sympathy for the situation in which Mr Borst found himself, I find that his January 1990 letter cannot fairly be construed as an application for review from the 1987 decision.  Even giving it a very liberal construction and considering it in the context of the annexed Rehabilitation League report, the letter cannot be realistically construed, in form or substance, as a request for a review of the 1987 decision under s 60.   No ACC employee receiving the letter would have read it as such.  Accordingly they would not have been alerted to the need to initiate a review of the permanent  incapacity  issue  (and  they  did  not  in  fact  undertake  such  a review).

[17]     The outcome of the appeal turned on the Court’s findings of fact.  I concluded that Mr Borst’s January 1990 letter, construed liberally and in context, was not an

application for review of ACC’s 1987 decision.

First and second grounds of appeal - Is there an outstanding review application under s 59 with respect to temporary loss of earnings?

[18]     I will address the first two proposed “questions of law”, as set out at [3]

above, together.

[19]     Mr Borst submits that the Court found that although his January 1990 letter was not an application for review from the 1987 decision in respect of the s 60 decision, it was an application for review in respect of the decision  relating to eligibility for earnings related compensation (“ERC”) under s 59.

[20]     Mr Borst accordingly submitted that a review (of the s 59 decision) remains outstanding and that the 1982 Act still requires a Review Officer to be appointed in relation to that decision.   The Review Officer so appointed would then have jurisdiction  to  determine  Mr  Borst’s  entitlement  to  weekly  compensation  with respect to both temporary and permanent loss of earnings (i.e. ss 59 and 60).

[21]   Mr Borst submitted that he would retain the protection granted by the transitional  provision  because  if  the  Review  Officer  determined  that  a  s  60 assessment was appropriate, then the only reason the assessment would be delayed would be because of an outstanding review application (albeit a review application in relation to s 59).

[22]     The Judgment must obviously stand on its own.  However, no finding that the January 1990 letter constituted an application for review from the 1987 decision in respect of the s 59 decision was intended and is not, in my view, to be found in the Judgment.  Although I noted that the January 1990 letter focussed on ERC issues under s 59, those issues were in fact addressed by ACC following receipt of Mr Borst’s letter (albeit by way of internal rather than external review).  ERC under s 59 was reinstated and back payments were made.   Accordingly, there were no outstanding s 59 issues before me on appeal.   The sole focus of argument was whether the January 1990 letter constituted an application for review from the separate 1987 decision regarding Mr Borst’s entitlements under s 60.

[23]     The second ground of appeal does not in my view advance matters further. Essentially it is a re-working of the first ground of appeal in a slightly different form.

[24]     A concise discussion on the distinction between a question of law and a question of fact was set out by the Supreme Court in Bryson v Three Foot Six Ltd:[8]

… the task which the lower Court is engaged upon is the application of the law to the facts before it in the individual case.  It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer.   Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision-maker misdirects itself in law.

[8] Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 at [23].

[25]     However the question is phrased, the reality is that Mr Borst contends that the contents of the 1990 letter can be construed as an application for review from the

1987 decision declining to undertake an assessment under s 60.   Counsel for Mr Borst describes this as a mixed question of fact and law.  In my view, however, it is simply a question of fact.

Third ground of appeal - alleged duty of care

[26]     The third proposed ground of appeal relates to whether ACC owed Mr Borst a duty of care and, if so, the impact of that on the interpretation exercise (there is no separate claim based on duty of care).

[27]     The issue of whether or not ACC owed a duty of care towards Mr Borst was not traversed before me during the appeal hearing (or at least not in any detail).  It is accordingly  not  addressed  in  the  Judgment.     Essentially  the  argument,  as  I understand it, is that the fact that ACC owed a duty of care to Mr Borst is another factor which weighs in favour of the Court taking a “generous and unniggardly” approach to interpretation of Mr Borst’s January 1990 letter, in accordance with the Rangiwhetu principles.

[28]     I expressly accepted in the Judgment, however, that a generous and liberal approach  to  interpretation,  in  accordance  with  the  Rangiwhetu  principles,  was

appropriate.   It is therefore not necessary to resort to a “duty of care” in order to

justify such an approach. Doing so would not lead to a different outcome.

Public policy

[29]     Mr Borst submitted that there is also a public interest aspect to this case, which favours leave being granted so that issues of general importance can finally be determined.  In particular he submitted that there is a public interest in determining precisely what must be contained in a written review application.

[30]     Mr Borst submitted that these are matters of public importance because they go to the heart of whether ACC should be assessing these matters internally or referring review applications (including those that are unclear or uncertain in scope, or lacking form) to an independent Review Office.  This was said to be significant for the population at large, given the bar against challenging decisions of ACC outside the review process.

[31]     It seems unlikely, however, that a decision from the Court of Appeal as to whether  Mr  Borst’s  letter  (sent  over  20  years  ago  now)  constituted  a  valid application for review is likely to provide much guidance to subsequent applicants for review. The issues in this case are very fact specific.

[32]     Further, the 1982 Act has now been repealed.   A claimant’s entitlement to ERC under s 60 of the 1982 Act is contingent on satisfying s 368 of the 2001 Act.  In terms of the requirement to have lodged a valid review before 1 October 1992, this requirement either will or will not have already occurred before 1 October 1992. Determination of this will turn on an analysis of the facts of each case.  Given the historic nature of the issues in this case, very few other claimants (if any) are likely to be affected by any appellate decision on the key issues in terms of the application of s 368(4) of the 2001 Act.

Conclusion

[33]     Leave was granted by the Authority for the applicant to appeal to the High Court.  The arguments advanced during that appeal hearing were entirely different to those advanced at the initial hearing (a course which ACC, responsibly, did not object to).   The applicant therefore had the opportunity to fully and extensively advance all the arguments he wished to raise on appeal, and did so.  To the extent that issues of law arose, including in particular the correct approach to the interpretation exercise, they were determined in favour of Mr Borst.

[34]     The applicant contends that his letter of January 1990 can be construed as an application for review from ACC’s 1987 decision under s 60.  In order for the Court of Appeal to accept this argument it must reach different factual findings to those expressed in the Judgment.  The issues raised on appeal are primarily factual, not legal.  I am not satisfied that there is a question of law which is capable of bona fide and serious argument and which is sufficiently important to justify a further appeal.

Result

[35]     The application for leave to appeal is declined.

Katz J