Crothers v Accident Compensation Corporation
[2018] NZCA 35
•5 March 2018 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA519/2017 [2018] NZCA 35 |
| BETWEEN | PAUL STANLEY CROTHERS |
| AND | ACCIDENT COMPENSATION CORPORATION |
| Hearing: | 19 February 2018 |
Court: | Winkelmann, Asher and Clifford JJ |
Counsel: | A C Beck for Applicant |
Judgment: | 5 March 2018 at 10.30 am |
JUDGMENT OF THE COURT
The application for leave to appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
Paul Stanley Crothers is a self-employed sheep and beef farmer in Whanganui. In 2010 he suffered a serious injury to his left hand, which resulted in partial amputation of his ring finger and other injuries. He received cover under the Accident Compensation Act 2001 (the Act) for a period, but on 8 September 2011 the Accident Compensation Corporation (ACC) determined that he had regained capacity for his pre-injury employment and was no longer entitled to weekly compensation (the Capacity Decision). This was formally recorded in a letter dated 4 April 2013.
Mr Crothers sought a review of the Capacity Decision, and another related decision refusing to pay the extra cost of purchasing an all-terrain farm bike (ATV) with power steering (the ATV Decision). He was unsuccessful. He then appealed to the District Court, and then by leave to the High Court. He was unsuccessful in both appeals.[1] He now seeks leave to appeal the High Court decision of Williams J given on 24 February 2017 on the basis that the appeal is wrong in law.[2] The grounds on which leave is sought are:
(a)The High Court adopted a different test for incapacity under s 103(2) of the Act from that which had been used in the District Court, but failed to refer the matter back to the District Court for determination in accordance with that test.
(b)There was no evidentiary basis for the High Court to make its own determination of the issues arising in the case.
(c)The Court erred in holding that “reasonable adaptation” could include engaging other persons to carry out tasks previously undertaken by the injured person.
[1]Crothers v Accident Compensation Corp [2015] NZACC 10 [DC Decision]; and Crothers v Accident Compensation Corp [2017] NZHC 259 [HC Decision].
[2]HC Decision, above n 1.
Mr Crothers seeks leave to appeal these issues to this Court under s 163(2) of the Act. Under s 163(1) of the Act, an unsuccessful party to the High Court decision must first apply to the High Court for leave to appeal to the Court of Appeal. Application was made to the High Court. In a decision of 16 August 2017, Thomas J declined leave.[3]
[3]Crothers v Accident Compensation Corp [2017] NZHC 1952.
This Court has summarised the power to grant special leave under s 163(2):[4]
[5] This Court has power to grant special leave to appeal under s 163(2) of the Act. The principles applicable to an application for leave under s 67 Judicature Act 1908 apply equally to an application under s 163 of the Act.[5] The Court will exercise this power if satisfied that there is a serious question of law 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.[6] Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.[7] The primary focus is on whether the question of law is worthy of consideration.[8]
(Original footnotes.)
The issue
[4]Cullen v Accident Compensation Corp [2014] NZCA 94 at [5].
[5]Knight v Accident Compensation Corp HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].
[6]Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corp HC Wellington AP266/00, 6 July 2001 at [4]; Khan v Accident Compensation Corp HC Auckland CIV‑2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corp [2012] NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
[7]Knight v Accident Compensation Corp, above n 5, at [18].
[8]Khan v Accident Compensation Corp, above n 6, at [5]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].
Section 103(2) of the Act provides:
(2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.
As at 8 September 2011, when the Capacity Decision was made, the substantive issue between Mr Crothers and ACC was whether ACC should fund the purchase of a new ATV that, unlike his existing one, had power steering. The upgrade would enable him to use the ATV on steep back country. He argued that he could not adequately manoeuvre his existing ATV, which had no power steering, because of the weakness in his left hand that followed the accident. He relied on the view of an expert, Mr Morris, which was largely derived from Mr Crothers’ own reporting, that indicated a significant loss of function in his left hand.
ACC did not consider that Mr Crothers needed an ATV with power steering. ACC relied on reports, in particular a report of a Dr Turner assessing Mr Crothers as being able to ride his ATV on the rough and steep terrain while avoiding over‑reliance on his left hand grip and scheduling work to avoid unsafe weather conditions. ACC decided to not assist in the purchase of the upgraded ATV and issued a decision to that effect on 8 September 2011. The Capacity Decision was made on the same day.
The Capacity Decision was upheld on review on 16 October 2013 (the Review Decision). Mr Crothers gave evidence at that hearing. In dismissing the application for review the Reviewer quoted an email from Mr Crothers of 10 November 2011 saying:
I felt I could handle going back to normal work so long as I could upgrade my ATV.
It was held by the Reviewer:
When I consider the evidence in its entirety I find all commentators/assessors, including Mr Crothers, agree that he was able substantially to engage in his normal employment.
The Review Decision was appealed to the District Court. Judge Ongley concluded that a reduced margin of safety did not necessarily lead to a determination of incapacity for pre‑injury employment, and “may have to be tolerated where the manner of work before injury already carried a degree of risk”.[9] He accepted ACC’s view that Mr Crothers was in effect able to engage in all aspects of his previous farm work, with a degree of adjustment in relation to the rough terrain work commensurate with his minor disability.[10]
[9]DC Decision, above n 1, at [34].
[10]At [25].
Leave was granted to appeal that decision in the High Court on the following question of law:[11]
Do the words “engage in employment” as they appear in s 103(2) of the Act mean that the claimant must be able to undertake all the tasks of his or her employment which he or she was able to carry out when he or she suffered the personal injury, or can a claimant be deemed not to be incapacitated even if he or she cannot undertake all such tasks?
[11]Crothers v Accident Compensation Corporation [2015] NZACC 383.
In the High Court Williams J held that the correct test is one of “reasonable adaptation”.[12] The assessor must:[13]
(a)identify the core tasks of the self-employment category — here sheep and beef farming on mixed flat and steep hill country; and
(b) assess whether these core tasks (all of them) can be done with reasonable adaptation.
Williams J found that this was effectively the test applied by Judge Ongley, even if the Judge did not express the test in those terms.[14]
[12]HC Decision, above n 1, at [50].
[13]At [51].
[14]At [59].
We record that it is the Capacity Decision only that is at issue, and not the ATV Decision.
Our decision
We do not consider that a question of law arises in the proposed appeal. We say this for two reasons.
First, there is no discernible difference between the tests applied in the District Court and the High Court. Having traversed case law and legislative history,[15] Williams J specifically stated that he considered the test applied by Judge Ongley to the facts to be correct.[16] While the language he used was somewhat different from that used in the District Court, we do not consider he applied a test that was materially different from that of Judge Ongley. Moreover, Mr Beck for Mr Crothers did not argue that Williams J was wrong in the approach he adopted to the specific issue of Mr Crothers’ capacity.
[15]At [39]–[49].
[16]At [50].
Second, both decisions turned on factual findings and not upon the legal test. The Capacity Decision, the Review Decision and the appeal to the District Court all dealt with the question whether Mr Crothers could, as at 8 September 2011, resume his previous work. Judge Ongley found that Mr Crothers’ grip was still affected but, using his existing ATV, he could return to his pre-injury employment. There were some changes he would need to make as to his work practices, such as the need to avoid steep terrain in wet weather, but clearly these were not seen as significant. Judge Ongley said that the evidence showed that Mr Crothers could carry out his pre‑injury work without taking an unreasonable or inappropriate risk of further injury.[17] He said that Mr Crothers was not impaired from working the steep country. Williams J agreed.[18]
[17]DC Decision, above n 1, at [33].
[18]HC Decision, above n 1, at [59].
The key factual finding was therefore that Mr Crothers was able to carry out the core tasks of his pre-injury employment. There were also references by Mr Beck to the evidence showing that Mr Crothers’s son commenced helping his father with farm work, and that this had continued. However, the farm use has changed, and Mr Crothers has got older. There is nothing to indicate that Mr Crothers’ son is doing work that Mr Crothers is incapable of doing because of the accident.
We acknowledge Mr Beck’s submission that in the ACC context this Court should clarify important points of law when they arise. However, it is undesirable to clarify such points where the factual findings made below render the issue moot as between the parties. As we have said, we do not accept the argument that Williams J differed from the District Court in his approach to capacity. More importantly, nothing will turn on any possible difference, given the central factual finding, consistent with all of the previous decisions, that Mr Crothers had returned to capacity by 8 September 2011.
Result
The application for leave to appeal is declined.
Given the history of this matter and Mr Crothers’ difficulties, and without opposition from ACC, costs will lie where they fall.
Solicitors:
John Miller Law, Wellington for Applicant
Medico Law Ltd, Grey Lynn for Respondent
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